The Issue Whether the applications of Fana Holtz, Daniel Holtz, and Javier Holtz to acquire and/or maintain control of Capital Bank, Miami, Florida should be approved.
Findings Of Fact Applicants, Daniel Holtz, Javier Holtz, and Fana Holtz have applied to the Department of Banking and Finance (Department) for approval pursuant to Section 658.28, Florida Statutes, to acquire and/or maintain a controlling interest in Capital Bank, through their share ownership in Capital Bank’s holding company, Capital Bancorp (Bancorp). Section 658.28(1) Florida Statutes, provides: . . . The department shall issue a certificate of approval only after it has made an investigation and determined that the proposed new owner or owners of the interest are qualified by reputation, character, experience, and financial responsibility to control and operate the bank . . . in a legal and proper manner and the interests of the other stockholders, if any, and the depositors and creditors of the bank . . and the interests of the public generally will not be jeopardized by the proposed change in ownership, controlling interest, or management. Capital Bank is a $1.6 billion financial institution headquartered in Miami, Florida. It is the largest independent bank in South Florida and the largest minority-owned bank in the United States. Capital Bank was formed under the laws of the State of Florida in 1976 from the merger of three banks. Its holding company, Bancorp, was formed in 1981. From the outset, Abel Holtz served as the President, Chief Executive Officer and Chairman of both Capital Bank and Bancorp, until his resignations in 1991 and 1994. In 1981, he personally held voting power over sixty percent of Bancorp’s outstanding common stock. A substantial portion of Abel Holtz’s voting power stemmed from shares he voted pursuant to shareholder agreements and proxies but did not own. From 1981 until 1994, the percentage of Bancorp shares controlled by Abel Holtz fluctuated, but at no time prior to the end of 1993 did he ever control less than 40.48 percent of Bancorp’s common stock. Capital Factors (Factors) is a subsidiary of Capital Bank. Its principal business is the purchasing or financing of receivables generated by manufacturing companies, and to a lesser extent, receivables generated by health care providers and employment service agencies. John Kiefer is the president and chief executive officer of Factors. By fiscal year ended December 31, 1995, Factors generated over fifty percent of the income of Bancorp, using less than twenty-five percent of Bancorp’s assets. Applicant, Fana Holtz, 62, is the wife of Abel Holtz of forty years. She is and has been a director and Vice Chairman of Bancorp since its inception. Following her graduation from the University of Havana with a Doctor of Pharmacology degree, Fana Holtz owned and operated her own pharmacy in Cuba from 1957 until 1961, when she orchestrated her husband’s release from prison and her family’s escape to the United States. Since arriving in the United States Fana Holtz has successfully managed a number of different real estate and retail ventures. Fana Holtz became involved in the real estate business in the mid-1960’s, when she and Abel Holtz purchased a 24-unit apartment building which they called Fanita Apartments. Fana Holtz was in charge of all aspects of the building management, from collecting the rent to preparing the books to remodeling the apartments. Fana Holtz became involved in the management of additional apartment buildings, some of which she purchased with Abel Holtz and others of which she purchased with other individuals. Fana Holtz assumed principal responsibility for managing each of these different apartment buildings. In the early 1980’s, Fana Holtz invested in a retail furniture business, Casa Bella of New York. She was a partner in the business venture with Barbara Castillo. Fana Holtz assumed principal responsibility over the business side of the partnership, including bookkeeping, budgeting and personnel functions. Over the six years of its existence prior to the termination of its lease, Casa Bella of New York grew to [text omitted] and enjoyed steadily increasing profits. Fana Holtz has also been a leader in the Miami community. She has played a central role in the leadership and fundraising efforts of a large number of charitable organizations, including the National Parkinson Foundation, the National Foundation of Ileitis and Colitis, the Juvenile Diabetes Research Foundation, the American Suicide Foundation, Project Newborn, and the Wien Alzheimer Center at Mount Sinai Medical Center. The Director of the National Parkinson Foundation, Emilio Alonso Mendoza, described Fana Holtz as one of the Foundation’s chief assets and explained that her active involvement on behalf of the National Parkinson Foundation is crucial to the Foundation’s success. Mr. Mendoza estimated that Fana Holtz has raised at least $2 million for the National Parkinson Foundation. The South Florida Region of the Weizmann Institute of Science, a research institute based in Israel, has named Fana Holtz as a distinguished woman in philanthropy. Fana Holtz’s personal financial affairs are inextricably intertwined and are commingled with Abel Holtz’s. She has little or no substantive knowledge of her personal finances or the state of her personal finances. She has little involvement in managing her personal financial affairs, relying on Abel Holtz. Fana Holtz [text omitted]. A secretary shared with Abel Holtz prepares and signs checks [text omitted] to pay Fana Holtz's personal bills. Fana Holtz presently asserts voting control over 39.7% of the outstanding common stock of Bancorp. She obtained control of most of those shares in 1994 through a series of gifts and conveyances from her husband. Abel Holtz helped to prepare Fana Holtz’s application to acquire or maintain a controlling interest in Capital Bank, which application is the subject of this proceeding. Applicant Daniel M. Holtz, 37, is the elder son of Abel and Fana Holtz. He is the Chief Executive Officer and Chairman of Capital Bank and Bancorp, positions he assumed in October 1994 upon his father’s resignation. Daniel Holtz has been the President of Capital Bank since 1991 and the president of Bancorp since October 1994. He is a director of Capital Bank (1982 to 1988 and 1991 to the present) and a director of Bancorp from 1988 to the present. Capital Bank of California (CBCA) was a federally insured commercial bank located in Los Angeles, California. CBCA was formed by three failed or failing banks. Daniel Holtz was Executive Vice President of Capital Bank of California from 1985 to 1987 and President and Chief Executive Officer from 1987 to November 1991. Unsatisfactory conditions found at CBCA as of December 31, 1989, led to the entry of a Memorandum of Understanding (MOU) by CBCA, the FDIC, and the Superintendent of Banks for the State of California on January 24, 1991. The MOU was followed by an Order of Cease and Desist entered against CBCA on March 31, 1992. CBCA was closed by the California Superintendent of Banking and taken over by the FDIC on June 18, 1993. In 1986 Daniel Holtz became President of Capital Trading, Group, Inc. (Trading), a subsidiary of Bancorp. Trading was established to “act as a catalyst between buyer and seller in making trade arrangements.” In other words, Trading was to be the middleman between buyers and sellers and not to buy and retain merchandise in hopes of finding a buyer for the goods. During Daniel Holtz’s administration of Trading and contrary to its business purpose, Trading acquired and stored a significant inventory of merchandise resulting in substantial losses. [text omitted]. Trading was liquidated during 1990 and 1991. In 1988, with the support of Fana and Javier Holtz, Daniel Holtz convinced then-President Abel Holtz to agree to a reorganization of Capital Bank along four primary business lines -- retail banking, international banking, commercial credit, and finance -– with executive vice presidents to assume specific responsibility and accountability for the various parts of Capital Bank’s business. Following the reorganization, Daniel Holtz became Executive Vice President in charge of the Retail Division. In this position, again with the support of Fana and Javier Holtz, Daniel Holtz implemented a number of initiatives including a mystery shopper program, employee training, and a formalized salary administration process. These initiatives in the retail area resulted in improved customer service, improved productivity, increased consumer lending, and substantial cost savings. Daniel Holtz became President of Capital Bank in late 1991. Upon assuming the presidency, he began to imprint his own management style on Capital Bank and brought in a new management team. Over the following three years, he appointed new Executive Vice Presidents to head up each of the Bank’s six divisions: Administration (Charles Boyce), Credit (Javier Holtz), Finance (Tim Harris), International (David Konfino), Legal (Tim Kish) and Retail (Tom Flood). Daniel Holtz established strong working relationships with his executive officers and cultivated a strong team spirit throughout Capital Bank. As President, Daniel Holtz focused his efforts on establishing and achieving the overall business goals for Capital Bank. Under the prior regime, Capital Bank had little in the way of long term planning, and Capital Bank’s earning and operational performance had been unpredictable. To reverse this trend, Daniel Holtz initiated strategic reviews of the Bank’s activities, developed a five-year rolling budget process, and initiated responsibility center reporting down to the individual branch level, thus providing each area of Capital Bank with objective criteria by which to judge its performance as compared to budget and to the prior year’s results. Daniel Holtz also took a number of steps to reduce Capital Bank’s risk profile. Under the prior regime, Capital Bank had focused on higher risk business strategies, including highly leveraged commercial and real estate lending international transactions avoided by other banks. Daniel Holtz redirected Capital Bank’s business towards smaller retail transactions with more established, top-tier correspondent banks and a more diversified loan portfolio with a greater emphasis on consumer lending and factoring transactions. To implement this change in direction, Daniel instituted a series of employee training and incentive programs designed to improve employee performance and customer service. He also expanded the formal employee review process that he had previously introduced in the retail division, thus enabling employees company-wide to have a clearer understanding of their job responsibilities and to be rewarded based upon objective criteria. Daniel Holtz also spearheaded a number of capital strategies that improved Capital Bank’s liquidity and capital ratios, while at the same time reducing the Bank’s credit exposure in its factoring subsidiary. These measures included the securitizations of Factors’ receivables, an initial public offering of nineteen percent of the shares of Factors, and the listing of Bancorp on NASDAQ. At Daniel Holtz’s direction, Capital Bank hired an outside consultant to review the bank’s internal controls and develop specific recommendations to improve Capital Bank’s regulatory compliance; introduced compliance training throughout the organization; instituted new procedures and controls to ensure compliance with Regulation O restriction on loans to insiders; established a full-time compliance officer position to monitor Capital Bank’s regulatory performance; charged the bank’s general counsel with ensuring that no proposal be brought before the Board of Directors that would violate applicable laws or regulations; and increased the frequency of the bank’s contacts with its primary regulators to improve relations and facilitate early identification and correction of any future compliance issues. Daniel Holtz also strengthened the role of the Board of Directors by creating and enhancing the role of a directors’ planning committee, compensation and benefits committee, conflicts of interest committee, and directors’ nominating committee; and by significantly expanding the information provided to directors in Board of Directors’ reports and distributing such reports in advance of board meetings. In 1995, Daniel Holtz, with the help of an outside consultant, initiated the Capital 2000 project which is expected to streamline Capital Bank’s operations in light of its new retail banking focus, redirect Capital Bank’s resources to their most effective use, and significantly lower the bank’s operating expenses while simultaneously enhancing key revenue sources. [text omitted]. Daniel Holtz owns approximately 4 percent of the total outstanding common stock of Bancorp. To acquire a 25 percent controlling interest in Bancorp, Daniel Holtz would have to acquire an additional 1,559,000 shares, which would cost approximately $41 million. Daniel Holtz does not have the financial wherewithal to a acquire a controlling interest in Bancorp. [text omitted]. Daniel Holtz has presented no plan by which he intends to acquire a 25 percent controlling interest in Bancorp. [text omitted]. Daniel Holtz is active in a variety of charitable organizations, including Habitat for Humanity, the Alelph Institute (a non-profit religious organization that works with Jews in the military and in penal institutions), and the United Foundation for AIDS. Applicant Javier J. Holtz, 35, is the son of Abel and Fana Holtz. He is currently the Executive Vice President and Chief Credit Officer of Capital Bank and a Senior Vice President of Bancorp. Javier Holtz has been a director of Capital Bank since 1982 and is Chairman of the Board of Factors. Javier Holtz currently owns approximately 2.2 percent of the outstanding shares of Bancorp stock. He does not have the financial means by which he could acquire a controlling interest in Bancorp. [text omitted]. Javier has presented no plan by which he intends to acquire a 25 percent interest in Bancorp. From 1988 to March 1992, Javier Holtz served as a senior vice president in Capital Bank’s Retail Division. In March, 1992, he became Assistant Division Head of the Credit Division, with the principal responsibility for addressing Capital Bank’s asset quality problems. [text omitted]. As Assistant Division Head, Javier Holtz implemented a series of new policies and procedures which have succeeded in improving Capital Bank’s asset quality, including new underwriting policies, a revised risk rating system, a perpetual review system for Bank loans, a loan review committee made up of executive vice presidents of Capital Bank, and an increased role for the special assets department. In March 1994, Javier Holtz became acting Division Head of Credit upon the resignation of Simon Portnoy. Javier Holtz was promoted to Executive Vice President and Chief Credit Officer of Capital Bank in September 1994. Since then, Javier Holtz has focused his energies as Chief Credit Officer on building Capital Bank’s loan portfolio through targeted business development efforts and a reengineering of the commercial lending function. Javier Holtz has been involved in the credit function for Factors since the mid-1980’s and was promoted to the level of Executive Vice President in charge of credit in November, 1994. He has final authority over all credit matters and provides essential independent oversight to Factors’ credit analysis. Javier Holt has served as a director of Factors since 1987, as Vice Chairman of the Board from January 1991 to November 1994, and as Chairman of Factors' Board of Directors since November 1994. In the latter capacity, he serves as a liaison between Factors and Capital Bank and is involved on an almost daily basis in strategic decision making, staffing decisions, and consideration of new business lines and opportunities. He has been involved in Factors’ recent efforts to diversify its business both geographically and through new lines of business, such as asset-based lending, health care receivables, and temporary employment receivables. Javier Holtz played a key role, both as Board Chairman and as Chief Credit Officer, in the planning and due diligence process for Capital Factors’ recent financing efforts – its $175 million in securitizations in 1994-95, the receipt of a new line of credit from Fleet Capital in 1996, and the recent initial public offering in July 1996. Javier Holtz is active in a number of charitable activities, including the National Parkinson’s Foundation, Temple Emanuel of Greater Miami, and the Lehrman Day School. Applicants acted in concert with Abel Holtz as shareholders in connection with a shareholder action by written consent in 1992, in which four directors were not re-elected to the Capital Bank Board of Directors. The shareholder action was taken in the midst of an investigation that two of these four directors, Stanley Worton and Alex Halberstein, had initiated against Abel Holtz. The origin of the 1992 dispute was the settlement of two sexual harassment complaints filed with the Equal Employment Opportunity Commission against Capital Bank and Abel Holtz. One of the complaints had been filed by the general counsel of Capital Bank. The settlements were authorized by Abel Holtz on the advice of outside counsel, Elizabeth DuFresne, a partner at Steel, Hector and Davis. Ms. DuFresne advised Abel Holtz to have the Bank prepare the settlement check to show that the amount of the check was for attorney’s fees, costs, and settlement of labor related claims and training of Capital Bank personnel. The purpose of preparing the check in this manner was to avoid other complaints of a similar nature. [text omitted]. Ms. DuFresne also advised Abel Holtz that the settlement was confidential and that he should not discuss the terms of the settlement with anyone, including bank directors, until she had had an opportunity to make a presentation to the Board of Directors. On the day that Abel Holtz signed the settlement agreements, he left for Spain. Abel Holtz requested that Ms. DuFresne make a presentation to the Capital Bank Board of Directors in August, 1992. The regularly scheduled board meeting was to be held on August 27, 1992. Ms. DuFresne was to be in Ireland at that time and advised that she would participate by telephone. On August 24, 1992, Hurricane Andrew hit Miami, resulting in the cancellation of the August 27 board meeting. [text omitted]. But for the cancellation of the August 27 board meeting, the Board of Directors would have been advised of the settlement of the sexual harassment claims at that meeting. There was no attempt by Fana, Daniel, or Javier Holtz to prevent the board members from learning of the settlement of the sexual harassment claims. Prior to the settlement of the sexual harassment claims, Abel Holtz had been keeping Alex Halberstein informed on a daily basis as to the progress of the settlement discussions. Following the settlement, Abel Holtz did not advise Mr. Halberstein of the terms of the settlement agreement, thinking that he was following advise of counsel not to disclose the terms to the directors until she could make a presentation to the board. Mr. Halberstein viewed Abel Holtz’s position as a personal affront and began investigating the matter on his own. Mr. Halberstein discovered the settlement check and certain other bank checks which he believed related to Abel Holtz’s travel and entertainment expenses and Capital Bank’s charitable donations. In early September 1992, Mr. Halberstein confronted Abel Holtz with the checks, and Abel Holtz denied any wrongdoing. Mr. Halberstein then contacted Dr. Worton, who was a member of Capital Bank’s Audit Committee. Shortly thereafter, the Audit Committee began investigating Abel Holtz for misappropriating Capital Bank funds through the sexual harassment settlement and various travel and expense expenditures and charitable donations. The Audit Committee was comprised of three outside directors, Chairman Alan Weiselberg, Dr. John Brown and Dr. Stanley Worton. The Audit Committee advised Abel Holtz that it would be investigating these allegations. Abel Holtz agreed to cooperate with the investigation, as did Daniel Holtz who was, at this point, President of Capital Bank. The Audit Committee retained the law firm of Bailey Hunt Jopes and Busto as outside counsel and enlisted the assistance of the bank's internal auditor in the investigation. [text omitted]. [text omitted]. [text omitted]. A majority of the Board of Directors of Capital Bank and Bancorp (excluding Holtz members) concurred with and supported the Audit Committee's actions. On October 16, 1992, a notice of special meeting of Capital Bank's board was issued. The bylaws of Capital Bank required that either the cashier or the president of Capital Bank sign the notice; however, neither the president nor the cashier could be located on October 16, so Alex Halberstein as Executive Vice President signed the notice. The purpose of the special meeting was to consider the interim report of the Audit Committee and to take appropriate action with respect to the report including removal of certain officers of the Board and/or Capital Bank. The special meeting was scheduled for October 19, 1992, at 4:00 p.m. at Capital Bank's boardroom. Abel, Daniel, Javier and Fana Holtz were aware of the directors' and Audit Committee's investigation and activities. They characterized the investigation of the sexual harassment settlement, travel expenses, and charitable contributions as a "witch hunt." Abel, Fana, Daniel, and Javier Holtz decided to increase control of Bancorp so that they could remove directors and restructure the boards of Bancorp and Capital Bank without a regular shareholders meeting. Daniel and Abel Holtz consulted the law firm of Greenberg Traurig Hoffman Lipoff Rosen and Quentel (Greenberg Traurig) regarding these matters. To facilitate their objectives, Abel, Fana, Daniel and Javier Holtz acquired additional shares of Bancorp between October 14 and October 19, 1992. [text omitted]. Abel, Fana, Daniel, and Javier Holtz also began soliciting proxies from other shareholders. [text omitted]. He also knew that Florida law prohibited such actions but took no action to prevent it. On October 19, 1992, prior to the scheduled special meeting of Capital Bank's board, Abel, Fana, Daniel and Javier Holtz and other Bancorp shareholders (whose combined shares amounted to 70% of the total outstanding shares) took corporate action by written consent in lieu of a shareholders meeting. The following actions were taken: increased the number of directors to ten; elected Fred Hirt, Timothy Kish and Alan Weiselberg to the Bancorp board; and authorized the president of Bancorp (Abel Holtz) to vote all shares that Bancorp owned in any subsidiary (Capital Bank). As a result of these actions, Abel Holtz reduced the number of directors on the Capital Bank board from ten to six. The directors eliminated were Raymond Clark, Alex Halberstein, Edwin Rosenthal, and Stanley Worton. Ironically, Abel Holtz voted proxies given to him by Alex Halberstein and Stanley Worton, to oust them from the Capital Bank board. The actions taken by the applicants in the October 19 meeting were to protect the interests of Abel Holtz and the Holtz family and to eliminate individuals from the Capital Bank Board who were questioning Abel Holtz’ actions. Rather than wait for the Audit Committee to complete its investigation, the Holtz family took matters into their own hands. On October 19, 1992, at 4:00 p.m. the following directors of Capital Bank arrived at the Brickell Avenue offices of Capital Bank to hold the noticed special meeting: Alex Halberstein, Simon Portnoy, Edwin Rosenthal, Stanley Worton, John Brown, and Alan Weiselberg. The directors were not allowed to get to the 12th floor by normal means of access and had to get to the 12th floor boardroom by taking the fire escape from the 11th floor. When they got to the 12th floor they were asked by Capital Bank security personnel and a city policeman to leave the building. The directors were given letters in which they were advised that it was the legal opinion of counsel for Capital Bank that the special meeting was improperly called and that four of the directors had been removed from the board. The directors left the bank building and reconvened the special meeting at another location. The directors voted to ratify the actions of the Audit Committee, remove Abel Holtz as chief executive officer of Capital Bank and as Chairman of the Board of Capital Bank, and to initiate legal action against Abel Holtz for reimbursement of the money paid to settle the sexual harassment claims. Capital Bank did not recognize the actions taken at the special meeting. [text omitted]. Additionally, three of the directors who had participated in the special meeting had been removed from the board by Abel Holtz shortly before the special meeting convened. [text omitted]. On October 30, 1992, Capital engaged the accounting firm of Arthur Andersen and Company (Arthur Andersen) to perform certain agreed upon procedures relating to the settlement of the sexual harassment claims, the travel and entertainment expenses of Abel Holtz, and charitable contributions made by Capital Bank. The agreement with Arthur Andersen was negotiated by the Greenberg Traurig firm on behalf of Capital Bank. Arthur Andersen issued a report on December 8, 1992. The accounting firm found Abel Holtz's settlement of the sexual harassment claims posed a conflict of interest, inadequate documentation for numerous travel and entertainment expenditures violated bank policy, and instances of expenditures by Abel and/or Fana Holtz for charitable contributions and travel and entertainment that appeared to be personal in nature. [text omitted]. Arthur Andersen recommended that Capital Bank's Board of Directors review the sexual harassment settlement, certain travel and entertainment expenses, and certain pledges to determine whether reimbursement by Abel Holtz was needed. John Kiefer was selected to replace Stanley Worton on the Audit Committee. Prior to his appointment to the Audit Committee, John Kiefer and the internal auditor who was working with the Audit Committee had a "run-in,” resulting in an acrimonious relationship between the two. John Kiefer was loyal to the Holtz family. As President of Factors, John Kiefer was not considered an independent director. His appointment to the Audit Committee violated the Audit Committee charter, which required three independent directors. The Audit Committee, now composed of Weiselberg, Kiefer and Brown, recommended that the Board of Directors of Capital Bank adopt resolutions which ratified the settlement of the sexual harassment claims, determined that there was no basis for requiring Abel Holtz to reimburse Capital Bank for the settlement and that the travel and entertainment expenses and charitable contributions specified in the Arthur Andersen report were ordinary and necessary business expenses of Capital Bank. Daniel and Javier Holtz voted at the board meeting in favor of these actions [text omitted]. In April 1994, [text omitted]. This transaction effectively shifted control of Capital Bank from Abel Holtz to Fana Holtz. A federal grand jury investigation was commenced concerning the activities of Abel Holtz in connection with Capital Bank. The grand jury investigation led to a negotiated plea by Abel Holtz on October 25, 1994, in which the potential criminal actions against Abel Holtz were not pursued in exchange for Abel Holtz's agreement to plead guilty to the charge that he knowingly and willfully endeavored to influence and impede the due administration of justice by giving misleading testimony to a federal grand jury about his relationship with Alex Daoud and about the nature of the services he was asked to perform, in violation of 18 U.S.C., Section 1503. The legal effect of the guilty plea is to bar Abel Holtz from directly or indirectly, owning, controlling or otherwise participating in the affairs of Bancorp and Capital Bank. On October 7, 1994, Abel Holtz resigned from all positions with Bancorp, Capital Bank and Capital Factors. In connection with his resignation, [text omitted]. [text omitted]. On February 8, 1995, Abel Holtz and his family’s control and operation of Bancorp and Bank were challenged in a shareholder’s derivative lawsuit filed against the Holtz family by Nathan Esformes, Stanley Worton, and Leonard Wein. Shortly after the filing of the lawsuit, Fana, Daniel, and Javier Holtz privately decided to and did solicit proxies so that they could restructure the board of directors of Bancorp without a regular shareholders meeting. On February 27, 1995, Fana, Daniel, and Javier Holtz and Leon Simkins carried out a corporate action in lieu of an annual shareholders meeting. At this meeting they removed Nathan Esformes and Alex Halberstein from the board of directors of Bancorp. Fana Holtz voted Stanley Worton’s and Alex Halberstein’s shares to eliminate Messers. Esfromes and Halberstein from the board. Again the applicants were protecting their own interests by eliminating individuals who were critical of the Holtz family from the Bancorp Board. [text omitted]. Abel Holtz knew about and participated in the corporate action and proxy solicitation in February 1995. Abel Holtz reported to prison on February 28, 1995, to begin serving his sentence. On February 28, 1995, the Board of Directors of Bancorp appointed an independent committee to investigate the claims made in the shareholders derivative action. The Independent Committee members were Russell Galbut, Leon Simpkins, Jeffrey Porter, and Craig Platt. Messrs. Porter and Platt were long standing friends of Daniel Holtz. At the time Leon Simpkins was appointed to the Independent Committee, [text omitted]. In March 1995, the Independent Committee hired the law firm of Zack Sparber Kosnitzky Spratt and Brooks to assist in the investigation. Counsel for the Independent Committee removed Jeffrey Porter and Craig Platt from the committee in order to avoid the appearance of conflict. [text omitted]. Mr. Simkins resigned from the Independent Committee shortly thereafter. The Independent Committee retained the accounting firm of Coopers and Lybrand to assist in the investigation of the allegations of the shareholders’ derivative suit. On May 29, 1995, the independent committee issued its report, which recommended that that the shareholders’ derivative action be dismissed. In May, 1992, Regulation O was extended to cover state banks, like Capital Bank, that are not members of the Federal Reserve. Accordingly, executive officers of these banks were no longer allowed to borrow in excess of $100,000 from their banks, subject to certain exceptions. [text omitted]. [text omitted]. [text omitted]. [text omitted]. The Internal Revenue Service has determined that Fana and Abel Holtz failed to report income totaling $1,417,128 from Bancorp for the taxable years 1989 and 1990. [text omitted]. In the early 1990’s Capital Bank was a troubled financial institution in terms of both regulatory compliance and financial performance. [text omitted] [text omitted]. [text omitted]. [text omitted]. [text omitted] [text omitted]. [text omitted]. [text omitted]. [text omitted]. [text omitted]. [text omitted]. [text omitted]. Since the 1992 Exam, Daniel Holtz has replaced Abel Holtz’s centralized management structure with a new team of executive officers who are responsible for specific business areas. [text omitted]. During the 1980’s Capital Bank experienced erratic earnings. Since Daniel Holtz became President, Capital Bank has experience steady and significant earnings growth. [text omitted]. Capital Bank has taken a number of significant and innovative steps to improve its liquidity position in recent years. Capital Bank has successfully pursued outside funding vehicles for its subsidiary, Factors, through three securitizations of Factors’ advances against receivables, a $40 million credit facility with Fleet Capital, and an initial public offering of nineteen percent of Factors’ stock. These financing measures have allowed Capital Bank to decrease significantly the amount of its lending to Factors, thereby increasing Capital Bank’s liquidity. 113. [text omitted]. 114. [text omitted]. 115. [text omitted]. Although Daniel Holtz became President of Capital Bank in 1991, Abel Holtz retained his positions of Chairman of the Board and Chief Executive Officer of Capital Bank and Bancorp and President of Bancorp until 1994. The evidence is clear that Abel Holtz was in control of Bancorp and Capital Bank until his resignations in 1994. He made the final decisions concerning the institutions and tolerated little or no criticism of himself by directors. He essentially “ran the show.” As a result of his conviction, Abel Holtz was prohibited from directly or indirectly participating in the affairs of Capital Bank and Bancorp. However, based on the testimony at the hearing, it is evident that Abel Holtz has been unable to distance himself from the affairs of Bancorp and Capital Bank. Abel Holtz’s continued involvement in Bancorp is exhibited by his participation in filling out Fana Holtz’s application for control which is at issue in this proceeding. Although both Fana Holtz and Abel Holtz denied that he assisted in the preparation of the application, the testimony of Omara Gonzalez is to the contrary. There would be no reason for Ms. Gonzalez to testify falsely about Abel Holtz’s involvement. By allowing Abel Holtz to assist in the preparation of the application, Fana Holtz exhibited a disregard for the prohibition of Abel Holtz’s participation in the affairs of Capital Bank and demonstrated that she continues to be dependent on Abel Holtz in the affairs of Capital Bank. As recently as the time of the hearing in this proceeding, Fana Holtz has discussed with Abel Holtz the potential sale of his shares of Bancorp. Abel Holtz continues to manage all of Fana Holtz’s financial affairs. He controls the joint checking account, arranges for all of their substantial joint debts and in all respects is the dominant partner in their marriage partnership. From December 1983 to April 1990, Abel Holtz arranged for monthly payments of $1,000 and later, $1,500 to be made to Alex Daoud (Daoud) through Capital Bank, then Sommerset Corporation, and then Factors. For the entire duration of this relationship, Daoud was an elected official of the City of Miami Beach, serving as a Commissioner and then as the Mayor beginning in 1985. The payments to Daoud were in part for political favors and influence. Both Javier and Daniel Holtz knew that Daoud was receiving money as a “retainer” and both attended meetings with Daoud in which the retainer was discussed in connection with their appointments to city boards. While Daoud was an elected official he assisted in getting Daniel Holtz appointed to the zoning board and in getting Javier Holtz appointed to the Visitors Convention Authority (VCA). Daniel and Javier Holtz, along with the rest of the executive management team, have entered into employment contracts that include standard change-of-control provisions. Pursuant to these contracts, if there is a change in the ownership of Capital Bank and the executive officer is removed from his position with the bank, he is entitled to receive a payment equal to no more than two times his annual compensation. The contracts were prepared at the recommendation of outside consultants working with outside directors on the Compensation and Benefits Committee. These types of contracts are standard in the banking industry and are viewed favorably by the securities market. The level of stock options which the Applicants have been awarded is not excessive. [text omitted]. The Applicants have not received an excessive amount of stock options, given their management roles and years of service with the bank. [text omitted]. [text omitted]. The evidence does not support a finding that Fana, Daniel and Javier Holtz as a group have the character, reputation, experience and financial responsibility to control and operate Bancorp and Capital Bank in a legal and proper manner. The evidence does not support a finding that Fana Holtz, individually, has the character, reputation, experience and financial responsibility to control and operate Bancorp and Capital Bank in a legal and proper manner. The evidence does not support a finding that Daniel Holtz, individually, has the character, reputation, and financial responsibility to control and operate Bancorp and Capital Bank in a legal and proper manner. Currently, Daniel Holtz does not have control of 25 percent of the shares of Bancorp. The evidence does not support a finding that Javier Holtz, individually, has the character, reputation, and financial responsibility to control and operate Bancorp and Capital Bank in a legal and proper manner. Currently, Javier Holtz does not have control of 25 percent of the shares of Bancorp. The evidence does not support a finding that it would be in the best interests of Capital Bank’s shareholders (other than the Holtz shareholders), depositors, and creditors for the applicants ,either as a group or individually, to control Bancorp and Capital Bank. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of May, 1997. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1997. COPIES FURNISHED: John B. Fretwell, Esquire Michael C. Gold, Esquire Department of Banking and Finance Comptroller's Legal Office 101 East Gaines Street Suite 526, The Fletcher Building Tallahassee, Florida 32399-0350 Eugene E. Stearns, Esquire Betty Chang Rowe, Esquire 150 West Flagler Street Suite 2200 (Museum Tower) Miami, Florida 33130 D. Jean Veta, Esquire Eric G. Lasker, Esquire Post Office Box 7566 Washington, DC 20044-7566 Mark A. Dresnick, P.A. Grand Bay Plaza, Suite 201 2665 South Bayshore Drive Miami, Florida 33133 Alex Halberstein 20185 Country Club Drive Apartment 2501 Adventura, Florida 33180 Honorable Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Harry Hooper, General Counsel The Capitol, Room 1302 Tallahassee, Florida 32399-0350
The Issue Whether Respondent County is guilty of an unlawful employment practice pursuant to Chapter 760, Florida Statutes, and if so, what is the appropriate remedy?
Findings Of Fact Petitioner is female, and within a class protected by Section 760.10(1), Florida Statutes. Respondent County is an "employer" within the meaning of Section 760.02(7), Florida Statutes. Petitioner claimed that Respondent treated her disparately from male employees on the basis of her gender in the areas of pay during her probationary period, reprimands and discipline, provision of equipment, poor performance evaluations, and training. Petitioner's initial relationship with Respondent was as an independent contractor at Respondent's Sanitary Landfill under a written contract entered into on September 15, 1989. In this capacity, she acted as a "spotter." As an independent contractor, she received $250 per month and salvage rights to whatever material customers brought to the Respondent's Sanitary Landfill. Effective August 14, 1990, the State Division of Personnel and Retirement required Respondent to put all contractual people on the County payroll. Thereafter, Petitioner was paid $350 per month and continued to have salvage rights only at the sufferance of the Respondent. After that date, Petitioner earned retirement and social security benefits. Withholding of federal taxes and deduction of social security benefits were also provided.(P-12). The value of the salvage rights were never calculated by anyone. While she was employed as a "spotter," Petitioner was the only female "spotter." Petitioner was on probation as an employee from August to December 1990. Petitioner was paid $1.442 per hour from August 12, 1990 through October 1990, and $1.63 per hour from October 1990 through December 3, 1990. At that time, her rate of pay was raised to $3.85 per hour. The record contains no evidence of what was paid to any male employee similarly situated during this period. Without proof that similarly situated male spotters were consistently paid better, there is no proof of gender discrimination in pay during Petitioner's probationary period.3 Mark Hawes, a male, was hired as a spotter on June 1, 1993. He was paid $4.35 per hour while on probation. Willie George, also male, was hired as a spotter on October 1, 1993, and was paid $4.4805 per hour while on probation. There is no evidence of how much Petitioner was being paid during this period, so there is no means of assessing disparate treatment in pay, if any, during this period.4 During the period that Petitioner was employed as a "spotter," there was no statute or rule requiring that "spotters" receive formalized training or be certified in any field. During Petitioner's employment, no spotter were provided more than a printed Job Description and on-the-job oral instructions. They were expected to use courtesy and common sense in dealing with the public. Two employees (gender unspecified) who were not spotters were sent to train at a state "school" to become Certified Landfill Operators. A State Rule was enacted after Petitioner was terminated which required that all spotters must have eight hours of specialized training. Thereafter, the Respondent provided such training to spotters. At all times material to any Personnel Citations, Petitioner was a union member, and all benefits of her union's collective bargaining agreement with the Respondent accrued to her. No performance evaluations were submitted in evidence. With the exception of the events related within the following findings of fact, no witness found any fault with Petitioner in the performance of her job description as a "spotter" at Respondent's landfill. (P-1) Wayne Hardee, Director of the Landfill, issued a Personnel Citation against Petitioner early in her employment on the basis of lack of personal hygiene. The citation was later removed from Petitioner's personnel file as an act of good will. On or about January 16, 1994, Petitioner admitted to an immediate supervisor that her carelessness with a hand-held CB radio had resulted in loss of the radio. She offered to pay for the radio. Mr. Hardee did not require her to pay for the radio, but issued a written Personnel Citation to her on January 20, 1994 for her carelessness. This Personnel Citation simultaneously cited Petitioner because Mr. Hardee had received complaints that Petitioner was overly concerned about other spotters doing their jobs. In this Personnel Citation, Mr. Hardee warned Petitioner to do her job without complaining about other employees. Petitioner admitted that she signed this citation and that she did not grieve it through her union. The radio was later recovered, but the citation remained in Petitioner's personnel file. (P-2) On Saturday, July 9, 1994, Petitioner called her union's senior shop steward, Jessie Ellzey, to the landfill to complain about items left at her spotter station. Mr. Ellzey's perception was that Petitioner was accusing another employee of putting the items in the wrong place. Petitioner also told Mr. Ellzey that another employee had threatened her. After investigation and interviews the following week, Mr. Ellzey and Mr. Hardee determined that the items had been brought by a landfill customer to the landfill between shift changes. Mr. Hardee's and Mr. Ellzey's perception was that Petitioner had unfairly complained about another spotter, Willie George, not doing his job. At least three days and two meetings were involved in this investigation and counseling procedure. Mr. Hardee issued a written Personnel Citation against Petitioner for complaining about a co-employee. (P-3) Petitioner also was suspended without pay for one day and warned that if the problem was not corrected, further disciplinary action would be taken against her. Petitioner did not grieve this citation through her union. Based on all of Mr. Ellzey's credible testimony, due to reputation testimony about Mr. Ellzey's standard operating procedure, and because Petitioner was actually suspended for one day without pay, I reject as not credible Petitioner's testimony that she never knew of this citation in time to grieve it. On August 13, 1994, Ann Harrell, a landfill customer, filed a written complaint of rudeness against Petitioner. (P-9) A written complaint of rudeness by Petitioner was also filed by another customer, Mr. Richburg, at about the same time. Mr. Hardee considered courtesy to customers to be an unstated policy of County government and further perceived rudeness to customers to be an on-going problem in Petitioner's relationship with the public. Due to the foregoing written complaints and many similar oral complaints he had received, Mr. Hardee assigned Petitioner two days' suspension without pay by a written Personnel Citation issued August 15, 1994. The citation also warned Petitioner she would be terminated if there were another complaint about her. Petitioner refused to sign this citation. (P-4) On August 25, 1994, Petitioner grieved the August 15, 1994 Personnel Citation through her union. (P-5) A hearing was held in response to Petitioner's grievance. All concerned agree that Mr. Ellzey, the union representative advocating Petitioner's position, and not a representative of management, kept Petitioner from testifying. Chester Humphries testified on Petitioner's behalf at the grievance hearing that he had been unable to hear what Mr. Richburg said but could hear what Petitioner said to Mr. Richburg. From this, Mr. Hardee inferred that Petitioner had raised her voice to Mr. Richburg. Mr. Hardee assessed Petitioner's character witnesses in Petitioner's favor but noted that they knew nothing about the specific incident between Petitioner and Mr. Richburg. Ultimately, Mr. Hardee relied on Mr. Richburg's testimony concerning the incident. (P-6) Mr. Hardee denied Petitioner's grievance and disciplined Petitioner in accord with the August 15, 1994 Personnel Citation. Upon advice of her union steward, Petitioner did not appeal the grievance hearing result. It was further agreed that if Petitioner's behavior resulted in no more complaints against her for 30 working days, the August 15, 1994, citation would be removed from her personnel file. Petitioner met this requirement, and the citation was removed from her personnel file. (P-6; P-7). Petitioner's December 13, 1994, charge of discrimination before the Florida Commission on Human Relations listed August 11, 1994, as the last date of alleged discrimination. No witness at formal hearing herein, including Mr. Ellzey and Mr. Humphries, both of whom also had been present at the grievance hearing, confirmed Petitioner's perception that her gender had affected the result of her grievance hearing. Another female employee (not a landfill spotter) currently works in Respondent's administrative offices. That female employee also has had employment disputes with Mr. Hardee which she attributes to his gender bias, but the type of dispute was not clearly specified on this record. Therefore, no similarity to Petitioner's situation can be discerned and no pattern of gender bias was proven on that basis. This female employee is still employed by Respondent. A different female employee (also not a spotter) employed by Respondent's Emergency Medical Services (EMS) was terminated by Mr. Bill Beddow, EMS Director, for failing to timely report (or complain about) her immediate supervisor for "doing something [Mr. Beddow] thought he shouldn't be doing with drugs." The male supervisor resigned for "personal reasons." The female employee was rehired by Mr. Beddow after intercession by her union. This means another female not similarly situated to Petitioner was terminated for not complaining about a male employee's job performance and was then hired back, whereas Petitioner was progressively disciplined with reprimands and suspensions for repetitive unsubstantiated complaints about male employees' job performances. Petitioner seeks to have the conclusion drawn that female employees were disciplined both for reporting and for not reporting male employees' misbehavior. However, the two isolated situations are so dissimilar as to develop no pattern recognizable at law. I accept as credible and unrefuted Petitioner's testimony that all of the complaints she initiated about other employees were oral. However, Petitioner's testimony that she did not complain about other employees' performance of, or failure to perform, their jobs and her assertion that her complaints were only motivated by the requirements of her Job Description to "inspect loads" and "report all problems" was not corroborated by any other witness. Petitioner's testimony that her concerns were directed not at individual employees but at addressing hazardous wastes also was not corroborated by any other witness.5 Petitioner's middle level supervisor acknowledged that Petitioner told him that other employees had improperly handled hazardous materials as well as non-hazardous materials but that he did not cite anyone as a result of Petitioner's complaints about hazardous wastes because it was impossible to prove who was responsible. He counseled all subordinates about each incident whenever he considered counseling appropriate. Otherwise, all witnesses with reason to know the situation generally acknowledged that Petitioner's oral complaints were recurring almost daily and were directed to other employees' job performances rather than hazardous materials. It is the repetitive and personal nature of Petitioner's complaints rather than their being oral that management found offensive. The evidence also generally shows that all employees orally complained about each other and that Petitioner's two immediate supervisors, Felippe McCelroy and Robert Murray, orally reprimanded everybody who complained or who was complained about as they each saw fit within their supervisory discretion on individual occasions. No gender pattern is to be discerned from the foregoing. Only on those occasions that either an oral or written complaint reached Mr. Hardee was anyone written up and/or disciplined. Petitioner complained about not being assigned or provided with one of Respondent employer's trucks when other male employees were provided trucks. With the exception of the following findings related to the Respondent's trucks, there is no relevant evidence in this record concerning employees' use of trucks. All employees were cautioned against carelessness. Tommy Dean, a male employee, dented one of Respondent's trucks. He was not disciplined for careless driving. There is no evidence the dent was caused by Mr. Dean's careless driving. In February 1995, Charles Kennedy, a male spotter, filed a written complaint or incident report. Therein, he claimed that Petitioner had attempted to prohibit his bulldozing landfill material out of the way because Petitioner was trying to remove salvageable items. He further alleged that Petitioner had thrown a jar of grease at him. Petitioner was requested to file a written account of the incident. In her written account, she basically admitted the incident but not any intent to hit Mr. Kennedy with the grease jar. Mr. Kennedy was not disciplined for filing the written complaint/report. Petitioner was not disciplined for the actions complained about by Mr. Kennedy. Instead, as of February 3, 1995, landfill spotters were prohibited from salvaging at the landfill. (P-13) Petitioner desires that the conclusion be drawn that male spotters who complained in writing about other employees were not disciplined for complaining but that Petitioner, a female, was disciplined for making oral complaints. However, it appears Respondent addressed Mr. Kennedy's written complaint in much the same way as it had addressed Petitioner's oral complaint against Willie George, by giving each participant in the dispute a chance to state his or her position, before management decided who should be disciplined. The difference was that Mr. Kennedy was not a chronic complainer and management's investigation revealed some fault on both sides, so a neutral solution was found rather than discipline being imposed. There is no evidence beyond Petitioner's assertion that she was ever asked to do more work or heavier work than male spotters. From this point on, the dates that events occurred or their chronology is not entirely clear from the record. However, approximately April 14, 1995, there was an occasion when Petitioner was asked to move metal pieces in a wheelbarrow-sized pile over a three-hour period. The largest piece weighed 21 pounds. The next day, Petitioner reported a workers' compensation back injury or aggravation. She was then off work until approximately May 11, 1995, when she returned to "light duty." She worked for awhile for only four hours per day. Respondent hired someone to help her. It is disputed whether Petitioner was reinjured or whether Mr. Hardee just sent her home. However, on or about July 8, 1995, Mr. Hardee discussed the situation with "the workers' compensation people," and it was agreed there was not enough light duty work for Petitioner. Three months later, Petitioner returned to full duty. Because a spotter had been hired to do her work, Petitioner was assigned to a variety of jobs. She worked at the dog pound, the recycling building, and even washed Mr. Hardee's truck.6 One day, Petitioner's immediate supervisor ordered her to cut out the top of a metal drum. At formal hearing, Petitioner asserted that this was heavier work than she should have been required to do on light duty, but there is no evidence the supervisor's order was motivated by gender bias. There also is no evidence a full-time male spotter was never required to do similarly heavy work. Petitioner advised her supervisor that she had hurt her arms and elbows and she went home on sick leave. Petitioner had complained over the term of her employment about not being provided one of Respondent's trucks so that she could conveniently get from her sector of the landfill to a restroom. After her workers' compensation injury, Respondent arranged for male employees to drive Petitioner to the restroom. Eventually, Respondent provided Petitioner with a portable toilet in her work sector. Mr. Hardee maintained that no spotter had ever been assigned a truck but that all spotters, including Petitioner, had access to one. There is evidence to show that male employees drove the trucks and Petitioner did not, but insufficient evidence to show this was an active management decision or that Mr. Hardee acquiesced in male employees preempting trucks as a result of any gender bias. On or about November 13, 1995, Petitioner informed Mr. Hardee that she was permanently physically disabled and would have to be on light duty indefinitely. After consultation with his "workers' compensation people," Mr. Hardee terminated Petitioner as of that date. 7 At formal hearing, Petitioner admitted Respondent was still paying her workers' compensation benefits and that her workers' compensation claim has not been settled.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding no discrimination and dismissing the Petition for Relief. RECOMMENDED this 19th day of November, 1997, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1997.
The Issue Whether Respondent Employer is guilty of an unlawful employment practice by discrimination in its failure to promote Petitioner on the basis of her race and/or gender.
Findings Of Fact Petitioner is an African-American female. Respondent is a constitutional office of local government that appraises property for tax purposes. At hearing, Petitioner claimed to have sent a written narrative of her concerns to FCHR on December 20, 2005, although she did not file her formal Charge of Discrimination until December 28, 2005.1/ At the commencement of the disputed-fact hearing, Petitioner indicated that the only issue to be determined was her entitlement to a promotion, and that no other discrimination claims were at issue in this case. Petitioner also indicated that she was challenging only two alleged promotional decisions: (1) a front counter position awarded to Valencia Scott; and (2) a sales qualifier position awarded to Mike Nichols.2/ Prior to being employed by Respondent, Petitioner had received a B.S. in criminal justice, with a minor in business administration, from Troy State University. Prior to being employed by Respondent, Petitioner worked as a substance abuse counselor with Corrections Corporation of America; as a regulatory specialist with the Florida Department of Business and Professional Regulation; as an evaluation specialist with Disc Village; as a drug treatment counselor with the Alabama Department of Corrections; and as a mental health associate with Tallahassee Memorial Hospital. During her employment with Respondent, Petitioner also worked part-time in a cleaning job. Petitioner was initially hired by Respondent approximately January 2003, as an “Other Personal Services” (OPS) employee. (Stipulated Fact). While serving as an OPS employee between January 2003, and October 2003, Petitioner was not entitled to, and did not receive, the usual benefits and emoluments of a regular, full-time employee, including but not limited to, membership in the Florida Retirement System, paid annual and sick leave, and health insurance. While employed as an OPS employee, Petitioner answered Respondent’s telephone switchboard and performed data entry duties. In approximately October 2003, Petitioner was employed in a full-time position at a higher rate of pay and full benefits. (Stipulated Fact.) In October 2003, Respondent promoted Petitioner into a newly-created full-time position of "switchboard operator." Prior to the creation of this switchboard operator position, various employees had worked the switchboard in the equivalent of four-hour shifts, because working the switchboard non-stop was monotonous in good times and was hectic and stressful due to the number of phone calls received during two peak periods each year. On some occasions prior to October 2003, part-time students also had been used for this purpose. Petitioner was offered the promotion on October 8, 2003, with an effective starting date of October 16, 2003. Upon this starting date, Petitioner was employed by Respondent in a full-time position at a higher rate of pay than she had received as an OPS employee, and began to receive retirement benefits, annual and sick leave, and health insurance. In 2003, Respondent promoted five employees. Four of the five promoted were African-American and/or female. Petitioner was one of the four African-American females promoted that year. From December 28, 2004, through December 28, 2005, none of Respondent’s employees were promoted. During this same period, Respondent had no promotional opportunities of any kind available to any employee. There also were no promotions between December 20, 2004, and December 28, 2005. (See Exhibit P-4 and Finding of Fact 11.) Petitioner received raises throughout her employment with Respondent. During busy times, she was provided additional assistance with her phone duties upon her request, because management agreed with her that the switchboard position was stressful. Petitioner consistently received excellent performance reviews. In September 2005, Petitioner asked her immediate supervisor, Shirley Eaton-Marks, where Respondent would advertise a front-counter position that was expected to become vacant. Petitioner testified that Ms. Eaton-Marks “vaguely” responded, "I am not sure. Sometimes on the Internet or in the [Tallahassee] Democrat."3/ In or about September 2005, Petitioner was provided an extended period of leave for back surgery and recovery. (Stipulated Fact.) Petitioner was on sick leave from September 28, 2005, through November 14, 2005. Respondent provided Petitioner as much leave as she needed for her surgery and recovery. When she ran out of her own accrued paid leave, sick leave was donated to Petitioner by a co-employee. During her leave of absence, food drop-offs to Petitioner’s home were coordinated by her co-employees. Hot meals were provided by co-employees to Petitioner and her family, as well as groceries. During one of these deliveries, Petitioner remarked to Michele Weathersby, Respondent's Chief Financial Officer, that Petitioner was appreciative of her co- workers’ efforts and gifts. Petitioner seemed genuinely overwhelmed by their generosity. While on sick leave, Petitioner spoke with Kathy Doolin, Assistant Property Appraiser, about working at the front counter. A sales qualifier position was not available at that time, and by all accounts, even Petitioner’s account, Petitioner never applied for, or made anyone in Respondent's office aware that she was interested in the sales qualifier position. Petitioner claims she was wrongfully denied a front- counter position. She also claims that the front counter position and sales qualifier positions constituted promotional positions for her. Petitioner’s definition of a “promotion” is moving into a position with greater job responsibility and more authority. However, she did not demonstrate what the job responsibilities and authority of the front-counter or sales qualifier positions were. Therefore, the respective responsibility and authority of the three positions cannot be compared. Petitioner has never specifically applied for any promotion while employed by Respondent. The front-counter position was filled by Valencia Scott. Ms. Scott, like Petitioner, is an African-American female. According to Michelle Weathersby, Respondent’s Chief Financial Officer, Respondent defines a “promotion” as moving an employee to a position with an increase in salary and perhaps an increase in benefits, such as a different benefits classification like “senior management” class, instead of “regular employee” class. By these standards, neither the front desk position nor the sales qualifier position would have constituted a promotion for Petitioner, and moving from a front desk position to the sales qualifier position would not have constituted a promotion for anyone. Petitioner returned from sick leave on November 14, 2005. On December 19, 2005, Petitioner requested to speak to the incumbent property appraiser. Petitioner testified that on December 20, 2005, she approached the incumbent property appraiser in his office and asked if he were aware that she was interested in promotion. She further testified that the Incumbent then stated that he was aware Petitioner was interested in promotion, but that "Speaking from the hardhat point of view, you were hired as a favor to my friend. I did not hire you to be promoted or trained in any other position." At hearing, the Property Appraiser emphatically denied making this statement or any similar statement. However, he acknowledged that he had hired Petitioner upon the recommendation of a mutual friend and that on December 20, 2005, Petitioner had come to speak to him about the stress she was feeling in her position as a switchboard operator and about her health problems. Kathy Doolin, who was present for most, but not all, of the December 20, 2005, meeting, also denied under oath that the comment described by the Petitioner had been made by the Incumbent while she was in the room. Further, she confirmed that the thrust of Petitioner's remarks in her presence were not about any promotion but were about the stress Petitioner was experiencing in her switchboard operator job. The testimony of Ms. Doolin, together with the respective narratives written by herself and Petitioner (Exhibits P-2 and P-5) immediately after the December 20, 2005, meeting strongly suggest that the incumbent property appraiser said he had done all he could to relieve Petitioner's job stress and could not transfer Petitioner to another position just because her current position was stressful, and that Petitioner heard these statements as a refusal to promote her at any future date and a lack of appreciation for Petitioner’s college degree and excellent work history. The Incumbent’s and Petitioner’s respective versions of the December 20, 2005, conversation amount to an equipoise of testimony. In other words, one says "yes," and one says "no." This type of evidence is insufficient to tip the balance of weight and credibility to Petitioner's version of events. Moreover, even if Petitioner's version of the Incumbent's December 20, 2005, statement to her, allegedly made outside Ms. Doolin’s presence, were the more credible version, which it is not, Petitioner’s version of what the Incumbent allegedly said expressed no racial or gender bias. Petitioner testified that she believed that what the incumbent property appraiser had said on December 20, 2005, and how he had said it, created a hostile work environment. However, Petitioner never filed any internal complaints with Respondent alleging that she had been subjected to a hostile work environment. In fact, she filed no internal discrimination complaints of any kind concerning the December 20, 2005, meeting, and the term "hostile work environment" did not appear until her July 6, 2006, Petition for Relief, which was filed after FCHR's "Determination: No Cause." On her lunch hour, either December 20 or 21, 2005, Petitioner telephoned her physician, because she was still upset by her perception of the December 20, 2005, meeting. Petitioner never returned to work after December 21, 2005. On December 23, 2005, Petitioner's doctor wrote a note for her to be off work from December 22, 2005, until January 2, 2006, due to undefined "significant health problems." On or about December 23, 2005, three days after the December 20, 2005 meeting, when Petitioner was no longer on the job, Mike Nichols, a Caucasian male, was transferred from the front counter into a sales qualifier position. Mr. Nichols had previously worked in Respondent's Deed Section and in its Mapping Section and had recently received his law degree from the University of Florida. Respondent considered Mr. Nichols to be a suitable candidate for the sales qualifier position. Upon transfer, Mr. Nichols did not receive a raise in his rate of pay. Petitioner never applied for the sales qualifier position (see Finding of Fact 18) and was not on the job when that position was filled. (See Finding of Fact 29.) While the duties of a sales qualifier were not developed at hearing, the job title “sales qualifier” suggests that Petitioner was arguably not as good a fit for the sales qualifier position, as was Mr. Nichols. Petitioner’s education was primarily in criminal justice, and her job experience was primarily in drug rehabilitation and answering a switchboard. Mr. Nichols’ legal education and training and his office experience with Respondent may have made him a superior candidate for the sales qualifier position. When contacted by her superiors, Petitioner gave no reason for leaving work, except that it would be "best under the circumstances." On January 4, 2006, Petitioner voluntarily resigned her employment with Respondent. (Stipulated Fact.)
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and its subordinate Charge of Discrimination. DONE AND ENTERED this 3rd day of November, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 2006.
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner when her employment assignment with Respondent was terminated in November 2004.
Findings Of Fact Petitioner is a 48-year-old African-American female. On or about September 10, 2004, Petitioner was placed with AT&T Wireless as a customer service specialist by a staffing agency, AppleOne. Petitioner's job duties as a customer service specialist included answering phone calls from AT&T Wireless' customers about their bills and assisting them with problems that they were having with their accounts. For the most part, Petitioner received positive feedback regarding her job performance as a customer service specialist. That feedback, which is reflected on the Advisor Evaluation Detail forms received into evidence as Exhibit P7, came from her supervisors as well as from quality assurance specialists. Petitioner testified that she generally got along well with her co-workers,2 but that she preferred getting assistance and taking instruction from men rather than women. After AT&T Wireless was taken over by Cingular, Petitioner and the other customer service specialists working for AT&T Wireless were required to attend a two-week training class regarding Cingular’s policies and procedures. The training class attended by Petitioner was also attended by her supervisor, Wendy Miller. Ms. Miller is a white female. On the first day of the class, Petitioner was having trouble logging into the computer system that was being used in the training class. Ms. Miller, who was sitting directly behind Petitioner, attempted to ask Petitioner a question about the problems that she was having and/or provide her assistance, but Petitioner simply ignored Ms. Miller. According to Petitioner, she ignored Ms. Miller because she was trying to pay attention to the teacher. As a result of this incident, Ms. Miller sent an e-mail to AppleOne dated November 30, 2004, which stated in pertinent part: It has been decided by Sandy Camp and myself to end [Petitioner’s] temporary assignment due to insubordination. She has been coached on her attitude for which she is not receptive to and several other people have mentioned that they do not want to help her due to her not wanting to listen. The last incident was today during our CSE class where she demonstrated insubordination and disrespect to me. In a later e-mail, dated March 7, 2005, Ms. Miller described the incident in the training class as follows: [Petitioner] was one of the reps not able to get into [the computer] system so I was attempting to assist her because she was sitting directly in front of me. I attempted to ask her a question and she turned her back to me & put up her hand as to say “don’t speak to me” and she completely ignored me even as I kept speaking to her. . . . . The descriptions of the incident in Ms. Miller’s e- mails are materially the same as Petitioner’s description of the incident in her testimony at the hearing. On the evening of November 30, 2004, Petitioner was called by someone at AppleOne and told that her assignment with Cingular had been terminated. Petitioner was paid by AppleOne during her entire tenure with AT&T Wireless and Cingular. Petitioner’s salary while she was working at AT&T Wireless and Cingular remained constant at $10 per hour. Petitioner’s entire tenure with AT&T Wireless and Cingular was approximately two months. Petitioner testified that she did not receive any other assignments through AppleOne after her assignment with Cingular was terminated. She attributed her inability to get other assignments through AppleOne to the fact that AppleOne "sided with" Cingular, who was its client, but there is insufficient evidence to make such a finding. In January 2005, Petitioner filed separate charges of discrimination with the Commission against AppleOne and Cingular. According to Petitioner, she was paid $400 by AppleOne to settle her claim against that company. Petitioner testified that she sold vacation plans and did other “odd jobs” between November 2004 and mid-February 2005 when she was hired by Sears as a home delivery specialist. Her job duties in that position include contacting customers to coordinate the delivery of appliances purchased from Sears. Petitioner testified that her initial salary with Sears was $9 per hour and that as of the date of the hearing her salary was $10 per hour. Petitioner testified that other customer service specialists had “problems” or “personality conflicts” with Ms. Miller, but she was unable to identify any other employee (of any race or age) who was similarly insubordinate or disrespectful towards Ms. Miller (or any other supervisor) and who received discipline less severe than termination. Petitioner’s actions toward Ms. Miller during the training class were disrespectful, at a minimum. Petitioner testified that Ms. Miller acted like a white supremacist, but there is no credible evidence in the record to support that claim. Petitioner also testified that AT&T Wireless and Cingular did not have any permanent customer service specialists that were as old as she, but there is no credible evidence in the record to support that claim. Petitioner presented no credible evidence regarding the race, age, or other characteristics of the person who filled her position at Cingular after her assignment was terminated.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing with prejudice Petitioner’s discrimination claim against Cingular. DONE AND ENTERED this 25th day of October, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2005.
Findings Of Fact The Respondent is a Public Employer within the meaning of Florida Statutes Section 447.203(2). Lloyd A. Perry was formerly an employee of the Respondent, and a public employee within the meaning of Florida Statutes Section 447.203(3). Dana E. Pratt was formerly an employee of the Respondent, and a public employee within the meaning of Florida Statutes Section 447.203(3). Prior to February 17, 1976, Lloyd A. Perry was employed by the Citrus County Road Department for a period of over four years. Immediately prior to the time that his employment was terminated, Perry was a roller operator. Except for rare occasions when he performed work as a flagman, or other work in conjunction with his roller work, Perry operated a tandem road roller. For the several months prior to February, 1976, Perry had continuously operated the same roller machine. Prior to February, 1976, none of Perry's supervisors informed him that his work was unsatisfactory, reprimanded him for performing work in an unsatisfactory manner, or indicated to him in any way that his job was in jeopardy for unsatisfactory performance of his duties. Dana E. Pratt had been employed by the Citrus County Road Department for approximately five years prior to February, 1976. For four years prior to that date he had been a motor grader operator. Pratt had annually received formal evaluations and his evaluations had always been very good. Prior to February, 1976, Pratt had never been criticized for below average or unsatisfactory work. He had never received any written reprimand for unsatisfactory performance on the job. From approximately December, 1973 until February, 1976, Perry had operated the newest grader machine in use by the Citrus County Road Department. No one else had operated the machine since it was acquired by the Citrus County Road Department. During February, 1976, Thomas Hutchinson was the Citrus County Road Superintendent. William Hitt was thee Assistant Road Superintendent. Hutchinson and Hitt served under the direction of the Citrus County Board of County Commissioners. Perry, Pratt, and numerous other employees of the Citrus County Road Department had, prior to February, 1976, become dissatisfied with conditions in the Road Department, primarily the manner of direction given the department by Hutchinson and Hitt. On Sunday, February 8, 1976, Perry drafted a petition specifying numerous grievances against Hutchinson and Hitt. It was his intention to secure the signatures of employees of the Road Department on the petition, and to present it to the Board of County Commissioners. Perry sought the assistance of County Commissioner DeBusk in drafting the petition. DeBusk offered several suggestions and his daughter typed the petition for Perry. Perry secured six or seven signatures on that Sunday. He was the first person to sign the petition, and Dana Pratt was the third. On Monday, February 9, Pratt informed his office that he had business to attend to and would not be at work that day. He did not claim sick leave for the time he missed. Prior to work and during the lunch hour he called as many employees of the Road Department as he could. After working hours he waited at a business establishment called the "Country Store" which was located in close proximity to the place where Road Department employees checked out of work. Forty-six employees of the Road Department signed the petition. Dana Pratt assisted in soliciting people to sign the petition. There was no evidence offered at the hearing from which it could be determined that those persons signing the petition did so other than freely and voluntarily. On Tuesday, February 10, 1976, Perry called his supervisor, Mr. Hutchinson, and told him that he had business to attend to. Hutchinson asked him if he was going to solicit more signatures. Perry told him that he was not. The Board of County Commissioners was meeting on that date, and Perry presented the petition to the Board. Members of the Board discussed the petition at length during the meeting. One commissioner asked Perry if he was big enough to go back to work and forget about the matter. Perry said that he was. On February 11, 1976 Perry returned to work at the regular time. Rather than being assigned to his regular duty as a roller operator, he was assigned to flag traffic for a grader operator. He continued in that capacity until Tuesday, February 17. On that date, at approximately 11:00 or 11:30 A.M. Tom Morton, the grader foreman, informed Perry that his employment was terminated as of 1:00 P.M. on that date. Both Morton and William Hitt told Perry that they did not know why he was fired. Dana Pratt attended the County Commission meeting on February 10. He was asked about whether he threatened a Road Department employee named Langley with respect to signing the petition. Pratt told the County Commission that he did not threaten Langley, and no evidence was offered at the hearing to establish that he did. On February 12, 1976, Pratt used the new grader machine that he had been using for some time prior thereto. At the end of that day his supervisors informed him that he would be using the oldest machine in the Department thereafter. He began using it on February 13. It took some time to get it started on that date. It also took some time to get it started on Monday, February 16. This was an old machine, and had been difficult to start for some years prior to the time that it was assigned to Pratt. At 12:30 on February 17, 1976, Tom Morton informed Pratt that his employment was terminated as of 1:00 P.M. on that date. Pratt was never given any reasons for his termination. On February 17, 1976, the Citrus County Board of County Commissioners acted to terminate the employment of Perry and Pratt. These actions were taken upon the recommendation of Mr. Hutchinson. Ostensibly the reason for Pratt's termination was that he had marked out on sick leave on a day when he was not sick. Ostensibly the reason for Perry's termination was that he had been missing from the job for approximately an hour. The evidence would not support a finding that Perry and Pratt were fired for these reasons. These reasons offered by Hutchinson, and followed by the Board of County Commissioners, were used as a ruse. On February 18, 1976, the day after Pratt and Perry were fired, Hutchinson called a meeting of all employees of the Road Department. Hutchinson told the employees that he had nothing to do with the termination, but he also told them that he would tolerate no more petitions and that if anyone did not like working conditions at the Road Department they could leave. He said that he had four County Commissioners in his pocket, and he reminded the employees that unemployment in Citrus County was high. He told the employees that he would take care of any petitions they distributed. During the week the petition was distributed, Hutchinson told one employee of the Road Department, James Johnson, that Johnson could be put in jail for signing the petition. During that same week he told his assistant superintendent, William Hitt, that all of the men who signed the petition had to go. After Perry and Pratt were fired, Hutchinson told Hitt that he got two, and he would get the rest. The basis for Hutchinson's recommendation to the Board of County Commissioners that Perry and Pratt be terminated was the fact that they participated in the distribution of the petition, and presenting it to the Board of County Commissioners. There was no evidence offerred at the hearing to indicate that any members of the Board of County Commissioners knew Hutchinson was presenting false reasons for the terminations; however, they did act to adopt the recommendation. The Board of County Commissioners did know that Pratt and Perry were among the leaders in distributing the petition highly critical of Hutchinson's work, and was clearly on notice that Hutchinson may have ulterior motives in recommending their dismissal.
The Issue The issues in these two cases are whether Respondent violated provisions of chapter 475, Florida Statutes (2015),1/ regulating real estate sales brokers, as alleged in the Administrative Complaints, by (1) failing to return a rental deposit to a potential tenant; (2) serving as the qualifying broker for Friendly International Realty, Inc. (“Friendly”), but failing to actively supervise Friendly’s operations and/or sales associates; failing to preserve Friendly’s transaction records and escrow account documents; and (4) acting in a manner that constitutes culpable negligence or a breach of trust. If there was a violation, an additional issue would be what penalty is appropriate.
Findings Of Fact Parties The Department is the state agency that regulates the practice of real estate pursuant to section 20.165, and chapters 455 and 475, Florida Statutes. Ms. King is a licensed real estate broker registered with the Department (license numbers BK 3203595, 3261628, 3293588, 3306619, 3335771, 3354773, and 3363985). Ms. King is registered with the Department as the qualifying broker for 16 brokerages located throughout the state of Florida. At all times relevant to this case, Ms. King’s registered address with the Department was 4430 Park Boulevard North, Pinellas Park, Florida 33781. Friendly International Realty, LLC Friendly was a Florida licensed real estate corporation, holding license number CQ 1040825. Records reflect that James Berthelot was the registered agent for Friendly at the time of incorporation, June 2011. At all times relevant, Mr. Berthelot was a licensed Real Estate Sales Associate (license number SL 3226474) registered with Friendly. In May 2014, Respondent drafted and entered into a Limited Qualifying Broker Agreement (“Broker Agreement”) with Friendly and its owner, Ivania De La Rocha.2/ Friendly and Ms. King entered into the Broker Agreement, “in order to comply with the requirements of the Florida Department of [Business and] Professional Regulation.” Under the terms of the Broker Agreement, Respondent was not paid by Friendly per transaction. Rather, Respondent agreed to serve as the “Corporate Broker of Record” in exchange for a payment of $300 a month “as a flat fee for any and all real estate business conducted by [Friendly].” The Broker Agreement also provided for a “late fee” penalty if Friendly was delinquent in this monthly payment. Section 1.1 of the Broker Agreement outlined Respondent’s duties to Friendly, requiring her to: (1) keep her and Friendly’s licenses active and in good standing under Florida law; (2) keep her other business interests separate from those involving Friendly’s interests; and (3) provide Friendly notice of any governmental inquiry involving her serving as Friendly’s broker. There was no mention in the Broker Agreement of either Respondent’s or Friendly’s responsibilities regarding oversight of transactions, training for sales associates, or day-to-day operations. Regarding document retention, the Broker Agreement provided: Section 9.0 AUDIT & REVIEW RIGHT: Broker shall have the right to enter [Friendly’s] offices upon reasonable advance written notice to verify compliance with the real estate laws of the State of Florida. There was no evidence that Ms. King ever provided Friendly with the kind of notice described in section 9.0 of the Broker Agreement. Although the Broker Agreement did not prohibit Friendly from holding funds or assets on behalf of third parties, section 10.0 (Miscellaneous) explicitly prohibited Friendly from operating an escrow account. (g) Escrow and Ernest Money Accounts. [Friendly] shall not be permitted to hold any escrow account(s). On July 31, 2014, Ms. King was registered with the Florida Department of State, Division of Corporations, as “manager” of Friendly. Ms. King was the qualifying broker for Friendly (license number BK3303898) from August 6, 2014, through September 30, 2015, and November 4, 2015, through January 13, 2016.3/ During the time Ms. King served as the qualifying broker, Friendly operated from a number of addresses in Miami- Dade County, including 11900 Biscayne Boulevard, Suite 292, Miami, Florida 33181; and 2132 Northeast 123rd Street, Miami, Florida 33181. The office door of the Friendly office located on Northeast 123rd Street was painted in large letters, “FRIENDLY INTERNATIONAL REALTY” and “ALICIA KING” painted underneath. At the hearing, when asked about Friendly’s address, Ms. King could only confirm that when she became the broker the office was “on Biscayne.” The Biscayne Boulevard address is the one listed on the Broker Agreement. At the hearing, Ms. King was wrong about when the Friendly office had moved from the Biscayne Boulevard to the Northeast 123rd Street location, insisting it was over the Christmas holidays in 2015. Records establish Friendly moved from the Biscayne Boulevard location to the Northeast 123rd Street location sometime between April and July 2014. In January 2016, Ms. King believed the office was still on Biscayne Boulevard. In reality, it had been over a year since the office had relocated to that location. At the hearing, when asked by her own counsel how many transactions a month Friendly handled, Ms. King replied, “That’s hard to say. It was not many at all. Ten, maybe.” Respondent could not give the exact number of employees or sales associates affiliated with Friendly; when asked, she stated she could not remember the exact amount, but knew it was “very limited.” Respondent did not have any agreements or documentation related to how many sales associates were registered under her broker’s license. Respondent could not name any other sales associates affiliated with Friendly while she was the qualifying broker, except for Mr. Berthelot. While she was Friendly’s qualifying broker, Respondent did not perform any of the training for the sales associates at Friendly. Respondent did not have any face-to-face meetings with any Friendly sales associates, except for Mr. Berthelot. Respondent did not have phone or e-mail contact with any of the Friendly sales associates, except for Mr. Berthelot. Respondent did not have copies of any forms, handbooks, reports or files related to Friendly. All of these documents were in paper form and kept in the Friendly office. Respondent had no access or signatory authority for any of Friendly’s bank accounts. Natalie James was a registered real estate sales associate affiliated with Friendly for approximately five months, from November 2015 through March 2016. Ms. James worked out of the Friendly office and was physically present at the office at least three or four times a week. Ms. James was involved in several rentals and one sales transaction while at Friendly. For each transaction she assembled a file, which was kept in the Friendly office. For rental transactions, Ms. James would negotiate and facilitate lease agreements. When she represented potential tenants, she received deposit funds that she deposited with Friendly. Ms. James attended meetings at Friendly; Ms. King was not present at any of them. Ms. James never had any telephonic, electronic, personal, or other contact with Respondent. While at Friendly, neither Mr. Berthelot nor any of Ms. James’ co-workers mentioned Ms. King to Ms. James. Although Ms. King’s name was on the door of Friendly’s office, Ms. James was unaware Ms. King was Friendly’s broker. There was conflicting testimony as to how often Respondent visited the Friendly office. Ms. King’s testimony at the hearing was at odds with the Department’s evidence and testimony regarding this issue. Ms. King insisted that while she was Friendly’s broker, she would travel from Pinellas Park to the Friendly office once or twice a week. This was not believable for a number of reasons. First, had Ms. King visited Friendly’s office as often as she stated, she would have known about the change in location; she did not. Second, Ms. King could not give one concrete date or detail about her travels to the Friendly office. Third, and most compelling, was the testimony of Ms. James (who worked at Friendly for at least two months while Ms. King was its broker) that she had never seen, communicated with, or heard mention of Ms. King while at Friendly. Ms. James’ unbiased and compelling testimony alone supports a finding that Ms. King did not visit the Friendly office as frequently as she indicated. Ms. King was aware that Friendly and Mr. Berthelot provided rental or “tenant placement” services.4/ Friendly collected security deposits and other move-in funds from potential renters and held them in an escrow account. Ms. King was not aware Friendly had an escrow account until January 2016 when she was contacted by the Department in an unrelated case. On January 13, 2016, Respondent resigned with the Department as the qualifying broker for Friendly effective that same day. On January 14, 2016, Respondent filed a complaint with the Department against Mr. Berthelot for operating an escrow account and collecting deposit funds without her knowledge. Facts Related to the Viton Case In November 2015, during the time Ms. King was Friendly’s qualifying broker, Christian Viton signed a lease agreement to rent an apartment located in Miami at 460 Northeast 82nd Terrace, Unit 8 (“Viton transaction”). The Viton lease agreement listed Friendly as the holder of the deposit monies and required Friendly to transfer the deposit and move-in funds to the owner of the property. Pursuant to the terms of the Viton lease agreement, Mr. Viton remitted an initial deposit of $500, and received a written receipt from Friendly dated November 2, 2015. Mr. Viton gave Friendly a second deposit of $380, and received a written receipt dated November 4, 2015. Mr. Viton never moved into the apartment and demanded a refund of his deposit from Friendly. On December 8, 2015, Friendly issued a check to Mr. Viton in the amount of $530. Three days later, Friendly issued a stop-payment order on the $530 check to Mr. Viton. On February 29, 2016, Mr. Viton filed a complaint with the Department seeking a return of the $880 he had given to Friendly. As a result, the Department initiated an investigation into Mr. Viton’s complaint and contacted Respondent. Upon learning about the Viton complaint, Ms. King contacted Mr. Berthelot who admitted Friendly had stopped payment on the $530 refund check, but had reissued the full amount of the deposit to a third-party not named on the lease. There is no evidence Mr. Viton ever received a refund of his $880 deposit. Facts Related to Dorestant Case In June 2015, during the time Ms. King served as Friendly’s qualifying broker, Cindy Dorestant entered into a lease agreement to rent a condominium located at 1540 West 191 Street, Unit 110 (“Dorestant transaction”). In the lease, Friendly was listed as the “broker” and holder of the deposit; TIR Prime Properties (“TIR”) was listed as the owner’s agent. The Dorestant lease agreement required Friendly to transfer the deposit and move-in funds collected from Ms. Dorestant to TIR. Pursuant to the terms of the Dorestant lease agreement, Ms. Dorestant gave Friendly $1,050 as an initial deposit, and received a written receipt dated June 24, 2015. In late July 2015, Ms. Dorestant contacted TIR’s property manager and sales agent to ask for information about the status of her move into the condominium. TIR explained to Ms. Dorestant that Friendly had not conveyed any of monies collected from Ms. Dorestant to TIR. Both Ms. Dorestant and TIR attempted to contact Friendly, but Friendly was non-responsive. The TIR sales associate relayed this information to TIR’s broker, Mariano Saal, who in turn tried to reach Friendly to resolve the issue. Eventually, TIR was told by Mr. Berthelot that Friendly would release the move-in funds to TIR and that Mr. Berthelot would schedule the move-in. TIR did not receive any funds from Friendly, nor did Mr. Berthelot facilitate Ms. Dorestant’s move into the condominium. On August 31, 2015, Mr. Saal contacted Mr. Berthelot and informed him that if TIR did not receive the move-in funds for the Dorestant transaction by 5:00 p.m. that day, it would be required to find another tenant. Ms. Dorestant did not move into the condominium and demanded a refund from Friendly and TIR. On September 14, 2015, Mr. Saal sent an e-mail to what he believed was Respondent’s address, demanding the $1,050 from Friendly because it considered Ms. Dorestant’s failure to move into the property a default of the lease agreement. Respondent, however, did not have access to Friendly’s e-mails. The e-mail was also sent to Mr. Berthelot, and Ms. De La Rocha. TIR did not receive any funds from Friendly for the Dorestant transaction. After discovering she could not move into the condominium because Friendly had not transferred the deposit to TIR, Ms. Dorestant demanded a refund of her deposit monies from Friendly. She did not receive it. On February 10, 2016, Mariano Saal, TIR’s qualifying broker, filed a complaint against Mr. Berthelot and Friendly with the Department regarding the Dorestant transaction. Ms. Dorestant initially did not receive a refund from Friendly and, therefore, filed a police report against Mr. Berthelot and sued him in small claims court. Eventually, Mr. Berthelot refunded Ms. Dorestant her deposit monies. Department Investigations of Friendly Upon receiving the Viton complaint, the Department assigned the case (DPBR Case No. 2016018731) to Erik Lluy, an Investigator Specialist II in the Miami field office. Similarly, on or around the same time the Department received the Dorestant complaint; it was also assigned to Mr. Lluy (DPBR Case No. 2016018069). On April 25, 2016, Mr. Lluy officially notified Ms. King of each of the complaints. On May 25, 2016, the Department transferred both the Viton and Dorestant complaints from Mr. Lluy to Percylla Kennedy. Ms. King provided a written response to both complaints via e-mail to Mr. Lluy on May 26, 2016. At that time, Mr. Lluy indicated the case had been transferred to Ms. Kennedy and copied Ms. Kennedy on the response. Ms. Kennedy was familiar with Friendly, Mr. Berthelot and Ms. King. In January 5, 2016, she had conducted an investigation of Friendly in an unrelated complaint filed against Friendly by Borys Bilan (“Bilan complaint”). As part of the investigation into the Bilan complaint, Ms. Kennedy arrived at the Friendly office address registered with the Department on Biscayne Boulevard to conduct an official office inspection. When she arrived, however, she found the office vacant. As a result, that same day Ms. Kennedy contacted the registered qualifying broker for Friendly–-Ms. King-–by phone. During that call, Ms. Kennedy asked Ms. King where Friendly’s office was located, but Ms. King did not know. Eventually, Ms. Kennedy determined the Friendly office had relocated to the Northeast 123rd Street location. Ms. Kennedy testified that during this call, Ms. King admitted to her that she had not been to the Northeast 123rd Street location. Respondent testified she did not tell Ms. Kennedy this and as proof insisted that the January call was inconsequential and “a very short call.” The undersigned rejects Respondent’s version of events and finds Ms. Kennedy’s testimony and report regarding the January 2016 interview more reliable. First, although Ms. King describes the conversation as occurring on January 7, 2016, both Ms. Kennedy’s testimony and the Inspection Report establish the conversation occurred on January 5, 2016. Second, Respondent’s characterization of the call as inconsequential contradicts her own May 26, 2016, written response to the Department in which Ms. King outlines a number of substantive issues discussed during this phone conversation, including: the nature of Friendly’s practice, whether Friendly had an escrow account, the type of payment accepted by Friendly, and the address of Friendly’s office. After speaking with Ms. King about the Bilan complaint, Ms. Kennedy conducted the inspection at Friendly’s Northeast 123rd Street location. Respondent was not present when Investigator Kennedy conducted the office inspection. Ms. Kennedy then e-mailed the Office Inspection form to Respondent. As a result of the January 5, 2016, phone conversation with Ms. Kennedy, Ms. King contacted Mr. Berthelot about the Bilan complaint. On January 13, 2016, Mr. Berthelot provided Ms. King with the transaction file related to the Bilan complaint. When Ms. King reviewed the lease agreement, she realized that Friendly was holding deposit funds in escrow. As a result, on December 13, 2016, Ms. King filed a resignation letter with the Department explaining she was no longer the qualifying broker for Friendly. Ms. King did not ask Mr. Berthelot or anyone else at Friendly for any other transaction records at this time, nor did she make any effort to review any of Friendly’s transaction files to determine whether Friendly had obtained other deposit funds or conducted other transactions similar to the one that was the subject of the Bilan complaint. After having knowledge of the Bilan complaint and transaction, and suspecting Friendly had been operating an escrow account, Ms. King made no immediate effort to access the operating or escrow bank accounts or reconcile the escrow account. After resigning as Friendly’s qualifying broker with the Department, Ms. King filed a complaint with the Department against Mr. Berthelot for unlicensed activity involving an escrow deposit.5/ Despite no longer being Friendly’s qualifying broker, on January 21, 2016, Ms. King executed and sent back to Ms. Kennedy the Inspection Report related to the Bilan complaint. Five months later, on or around May 25, 2016, Ms. Kennedy notified Ms. King she was taking over the investigation into the Viton and Dorestant cases. Ms. Kennedy testified that as part of her investigation into the Viton and Dorestant complaints, she interviewed Respondent again. Respondent denies she was interviewed by Ms. Kennedy regarding the Viton and Dorestant complaints, and instead insists she was only interviewed in January 2016 in connection with the Bilan complaint. Ms. King testified she believed Ms. Kennedy lied about interviewing her more than once because Ms. Kennedy was “lazy.” The undersigned rejects this assertion. Ms. Kennedy’s testimony was specific, knowledgeable, and credible, unlike Ms. King’s testimony, which was intentionally vague. Moreover, Ms. Kennedy specifically attributes her findings to specific sources such as Ms. King’s written response, her interview with Ms. King relating to the Viton and Dorestant transactions, and to her previous conversation with Ms. King during the Bilan investigation. The citations to information gleaned from the January 5, 2016, call were marked by the following sub-note. SUBJECT was previously interviewed by this Investigator in January 2016 for the unrelated complaint and was unaware that FRIENDLY INTERNATIONAL REALTY LLC had moved from license location 11900 Biscayne Blvd.[,] Suite 292 Miami, FL 33181 to 2132 NE 123ST[,] Miami, FL 33181 (See Ex. 9). At that time, SUBJECT was unable to provide the transaction file. Ms. Kennedy would have no reason to fabricate the source of the conclusions she reached in her report or the number of times she contacted Ms. King. Ms. Kennedy submitted her original investigative report to the Department for the Viton complaint on October 31, 2016. Per the Department’s request, Ms. Kennedy interviewed Mr. Viton and submitted a supplemental report on December 13, 2016. In this report, Ms. Kennedy determined that on February 25, 2016, Friendly issued a check in the amount of $875 to a person who was not listed on either the lease agreement, the receipts Friendly issued to Mr. Viton, or any other paperwork. Similarly, Ms. Kennedy submitted her original investigative report to the Department for the Dorestant complaint on October 31, 2016. Per the Department’s request, Ms. Kennedy interviewed Ms. Dorestant and submitted a supplemental report on December 13, 2016, indicating Ms. Dorestant did eventually receive a refund. During the course of the Viton investigation, Mr. Lluy and Ms. Kennedy requested that Respondent provide the Department with the file related to the Viton transaction, and documentation for Friendly’s escrow account. Although Respondent provided the Department a response (consisting of a written explanation with a copy of the Bilan file and some communications between Mr. Berthelot and herself from May 2016), she did not provide the Department with the transaction file related to the Viton transaction or Friendly’s escrow account documentation. During the course of the Dorestant investigation Mr. Lluy and Ms. Kennedy requested that Respondent provide the Department with the file related to the Viton transaction, and documentation for Friendly’s escrow account. Although Respondent provided the Department a response (consisting of a written explanation with a copy of the Bilan file and some communications between Mr. Berthelot and herself from May 2016), she did not provide the Department with the transaction file related to the Dorestant transaction or Friendly’s escrow account documentation. Professional Standards Mr. Saal, TIR’s qualifying broker, testified he had served as a broker for approximately ten years. As TIR’s qualifying broker, he kept the documentation related to the transactions handled by TIR’s six sales associates. The testimony of the TIR sales associate and property manager established that they relied on Mr. Saal for advice and to resolve issues. For example, when Ms. Dorestant began contacting TIR’s sales associate and property manager regarding the move-in and then for a refund of her deposit, the sales associate went to Mr. Saal to discuss the situation. Mr. Saal then attempted to resolve the issue by attempting to communicate with Friendly, Mr. Berthelot and Ms. King. Mr. Trafton, an experienced real estate broker and expert in brokerages, reviewed the Department’s investigative files and reports relating to the Viton and Dorestant complaints, as well as applicable Florida Statutes and rules. Mr. Trafton’s testimony and report established that in Florida the usual and customary standard applicable to brokers is that they must promptly deliver funds in possession of the brokerage that belong to others. Petitioner showed that Mr. Viton was entitled to a refund of his deposit from Friendly and that Respondent erred in not ensuring he received this refund. Mr. Trafton also testified that the standard of care applicable to a broker in supervising sales associates requires active supervision. “Active supervision” is not defined by statute or rule, but by usual and customary practices exercised statewide. “Active supervision” requires a broker to: have regular communications with all sales associates, not just communicating when there is a complaint; be aware of problems, issues and procedures in the office and among sales associates; have access to and signatory power on all operating and escrow accounts; hold regular scheduled office/sales meetings; conduct in–person training meetings; provide guidance and advice for sales associates; be intimately involved in how transaction forms and other documents are stored and retrieved; and be available to provide advice and direction on short notice. In other words, a broker should set the tone at the brokerage by overseeing her sales associates’ conduct of transactions. Ms. King failed to manage, direct, and control her real estate sales associate, Mr. Berthelot, to the standard expected of a qualifying broker in both the Viton and Dorestant transactions, if not all of Friendly’s transactions. She did not actively supervise Mr. Berthelot as a sales associate. Mr. Trafton also testified that a broker, not the brokerage, is ultimately responsible for preserving transaction files, forms related to transactions, and other related documents. Although less certain than Mr. Trafton about whether a broker or the brokerage firm is responsible for preservation of transaction files, Mr. Saal testified “the broker is responsible for the . . . transactions. It’s [the broker’s] client at the end of the day.” Ms. King failed to preserve accounts and records relating to Friendly’s accounts, the files related to the Viton and Dorestant rental transactions, or any other documents related to Friendly. Petitioner also clearly established that Respondent was guilty of either “culpable negligence” or “breach of trust” in the Viton or Dorestant transaction. As Investigator Kennedy testified, and as corroborated by cost summary reports maintained by the Department, from the start of the investigation of the Viton complaint through September 14, 2017, the Department incurred $1,625.25 in costs, not including costs associated with an attorney’s time. As Investigator Kennedy testified, and as corroborated by cost summary reports maintained by the Department, from the start of the investigation of the Dorestant complaint through September 14, 2017, the Department incurred $1,608.25 in costs, not including costs associated with an attorney’s time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission: Case No. 17-3989 Finding Respondent Alicia Faith King in violation of sections 475.25(1)(d)1., 475.25(1)(u), 475.25(1)(e), and 475.25(1)(b), as charged in Counts I through IV of the Administrative Complaint in the Viton case. Imposing an administrative fine totaling $2,500 ($500 fine per count for Counts I, II and III; and $1,000 fine for Count IV). Imposing license suspension for a total period of nine months (one-month suspensions each for Counts I, II, and III; and a six-month suspension for Count IV). Imposing costs related to the investigation and prosecution of the case in the amount of $1,625.25. Case No. 17-3961 Finding Respondent Alicia Faith King in violation of sections 475.25(1)(u), 475.25(1)(e), and 475.25(1)(b), as charged in Counts I through III of the Administrative Complaint in the Dorestant case. Imposing an administrative fine totaling of $2,000 ($500 fine per count for Counts I and II; and $1,000 fine for Count III). Imposing license suspension for a total period of eight months to be imposed consecutive to the suspension in Case No. 17-3989 (one-month suspensions each for Counts I and II; and a six-month suspension for Count III). Imposing costs related to the investigation and prosecution of the case in the amount of $1,608.75. DONE AND ENTERED this 25th day of January, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2018.
The Issue Whether Respondent committed the unlawful employment practice alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent (also referred to herein as "ADT") is a provider of electronic security systems and services. It has both residential and non-residential (business and governmental) clients. Petitioner is a 30-year-old female. After graduating from high school, she attended Passaic College in New Jersey, accruing approximately nine fewer credits than she needed to obtain an associate's (two-year) degree in business management. Petitioner is currently ADT's Broward County Residential/Small Business Resale Manager. She started working for ADT in 1999 as a Residential Sales Representative. In 2001, she moved to a Core Commercial Sales Representative position. In May 2005, she voluntarily left the company "[t]o pursue another opportunity," but returned in April 2008 as a Core Commercial Sales Representative, working out of ADT's Miami office (as she had from October 2004 until her departure in May 20052). She remained a Miami Core Commercial Sales Representative until being promoted to her present position (her first "direct report" managerial position3) on or about September 26, 2009.4 Petitioner has been the recipient of numerous "awards and other types of recognition" from ADT during her employment with the company. Before becoming the Broward County Residential/Small Business Resale Manager, Petitioner had submitted an online application, on June 11, 2009, for another managerial position with ADT, that of Miami Core Commercial Sales Manager (MCCSM Position).5 She was neither interviewed, nor selected for the MCCSM Position. The recruiting for the MCCSM Position was handled, not by ADT's local Human Resources office, but by a female independent contractor, Natasha Carosielli. Ms. Carosielli posted the position opening on ADT's internal and external websites. The posting contained the following information about the position: Commercial Sales Manager Job description: The ADT Commercial Sales Manager is the leader of the commercial sales team in one of ADT's field offices. This role is responsible for building a team of highly productive sales representatives that can meet and exceed revenue expectations, as well as the needs of our existing and potential customers. The Commercial Sales Manager[s] [are] responsible to drive ADT's Corporate Sales and Marketing initiatives through the territories for which they are responsible. These include business and customer development, territory management, data mining, professional presentation and product sales. Additionally, this individual is responsible for job and channel profitability, revenue per user ("RPU") growth of our customers, and retention of both customers and sales representatives. This position requires a strong, principle centered leader. Duties and Responsibilities: Model and champion ADT values. Create a safe environment for the discussion and resolution of values-related issues and concerns. Plan, coordinate and implement Commercial sales operations. This would include business and customer development and territory management. Attain budgeted revenue expectations. Assure the profitability of the channel is met. Build and retain an effective team of sales representatives. Lead, coach and motivate team to achieve pre-established goals. Set sales territory expectations for each of ADT's sales representatives including customer touch expectations, as well as quota achievement. Direct territory activities of sales staff. Measure the activities of each sales representative to assure that their marketing activities will produce intended sales production. Implement and execute the company's marketing strategy and business plans. Work in concert with other department and business segment leaders to assure congruence with sales operations, representing the voice of the department, the customer and the interests of the sales team. Work with National Account Managers to secure National Account business. Requirements: Education: College Degree in Business, Marketing or other related field. Experience: Minimum of 5 years sales experience, including 3 years of field sales management experience in a business to business environment, or successful management of another sales channel. Skills: Excellent oral and written communication skills Proven ability to effectively interact with internal organization and customer organizations both at the senior executive and field level Functional/Technical Skills in leading a sales organization Action Oriented Business Acumen Drive for Results Managing & Measuring Work Customer Focus Building Effective Teams Motivating Others Organizational Agility Interpersonal Savvy Conflict Management Learning/Change Agility Managing Vision & Purpose Managerial Courage Managing Diversity Developing Direct Reports & Others Other: Ability to travel nights and weekends to accommodate the customer's agenda. This language is boilerplate that ADT uses, nationwide, whenever it advertises an opening for a Core Commercial Sales Manager position.6 Ms. Carosielli reviewed the applications/resumes submitted in response to the posting, screened applicants (by speaking to them over the telephone), and then forwarded to the hiring manager (that is, the ADT employee responsible for making the hiring decision) the resumes of those applicants, and only those applicants, she deemed to be qualified for the position. "All of the applications[/resumes] [went] through [Ms. Carosielli]," and Ms. Carosielli alone. Those she did not forward were not seen by the hiring manager. April 30, 2009, was the date "when the original posting went up" advertising the MCCSM Position opening. At that time, Jerry Weaver was the hiring manager. Mr. Weaver was then, and still is, ADT's Southeast Region Group Director for Commercial Sales. Among Mr. Weaver's "direct reports" is ADT's Southeast Area Commercial Sales Manager, to whom, in turn, the MCCSM reports.7 As of April 30, 2009, the Southeast Area Commercial Sales Manager position was vacant, and no one had yet been selected by Mr. Weaver to fill the position. Mr. Weaver subsequently offered the Southeast Area Commercial Sales Manager position to an internal candidate, Kurtis Sonnenberg, who was then ADT's Director of Custom Home Services. Mr. Sonnenberg assumed the job responsibilities of the Southeast Area Commercial Sales Manager on June 1, 2009 (although it was not until a month later, on July 1, 2009, that he "officially" became the Southeast Area Commercial Sales Manager8). Among these responsibilities was serving as the hiring manager for the open MCCSM Position. Mr. Weaver directed Mr. Sonnenberg to make the filling of this open position (which had already been advertised for two months) Mr. Sonnenberg's "first and foremost . . . priority." Upon assuming his new responsibilities, Mr. Sonnenberg spoke with Ms. Carosielli and told her that he was hoping to fill the MCCSM Position with an individual who, among other things, was bilingual (English/Spanish speaking) and had experience in the electronic security systems and services industry managing a large team of sales representatives (who were "direct reports"), preferably in a "turnaround" situation.9 He also expressed his desire to obtain from Ms. Carosielli a "diverse group of candidates." On or about June 4, 2009, Mr. Sonnenberg was approached by Andres Vidales, who was then ADT's Sales Manager for Custom Home Services in South Florida (a managerial position with 15 to 17 "direct reports"). Mr. Vidales, who is bilingual and had previously "worked for" Mr. Sonnenberg "in a couple of different management capacities, all of which were in a turnaround situation," informed Mr. Sonnenberg that he was interested in the MCCSM Position. Mr. Sonnenberg responded by telling Mr. Vidales that he "needed to go through the proper channels" and "apply online." Mr. Vidales, sometime later that day (June 4, 2009), "appl[ied] online" for the MCCSM Position, as Mr. Sonnenberg had suggested he do. After reviewing Mr. Vidales' application/resume and then speaking to him over the telephone, Ms. Carosielli determined that Mr. Vidales was qualified for the MCCSM Position.10 She therefore forwarded Mr. Vidales' resume to Mr. Sonnenberg. That same day (June 4, 2009), Mr. Sonnenberg interviewed Mr. Vidales (by telephone) for the MCCSM Position. During the interview, Mr. Vidales mentioned to Mr. Sonnenberg that he was pursuing other employment opportunities, in addition to the MCCSM Position. Mr. Vidales was, in Mr. Sonnenberg's opinion, "an extremely qualified candidate" who possessed the attributes he was looking for. Mr. Sonnenberg "wanted . . . another opinion," however, to either "validate his belief" that Mr. Vidales was the right person for the MCCSM Position or to "point out something that [Mr. Sonnenberg] may have missed." He thus asked Mr. Weaver to interview Mr. Vidales, which Mr. Weaver did (by telephone) on June 5, 2009. Mr. Weaver agreed with Mr. Sonnenberg's assessment of Mr. Vidales' suitability for the MCCSM Position, and he so informed Mr. Sonnenberg. The afternoon of June 5, 2009, Mr. Sonnenberg verbally offered Mr. Vidales the MCCSM Position, and Mr. Vidales accepted the offer. Later that afternoon (June 5, 2009), Mr. Sonnenberg informed Ms. Carosielli of this development. From that point forward (on June 5, 2009), Ms. Carosielli took no further action to recruit for the MCCSM Position: she reviewed no more applications/resumes, interviewed no more applicants, and forwarded no more resumes to Mr. Sonnenberg, the hiring manager. It is Ms. Carosielli's standard practice to "leave [a job opening posting] up until someone [actually] assumes the [advertised] position." She does this in order to "have a pool of applicants" available if "anything falls through." Consistent with this practice, she did not, after learning of Mr. Vidales' acceptance of the MCCSM Position, immediately remove the online postings for the position. Instead, she waited until Mr. Vidales was actually in the position11 to take them down. After June 5, 2009 (the date Ms. Carosielli was informed of Mr. Vidales' acceptance of the MCCSM Position and she stopped her recruiting efforts), ADT received an additional 46 applications for the position, including Petitioner's. Of these 46 applications, 41 were submitted by men and five by women. All 46 applicants, regardless of their gender, were treated the same: their applications were not reviewed, and they were nether interviewed nor otherwise considered for the MCCSM Position. Petitioner was treated no differently than the 41 men who, like her, applied after June 5, 2009. Her gender had nothing to do with her not getting the position. Her application was not considered simply because of when it was submitted. Petitioner believed, when she applied for the MCCSM Position on June 11, 2009, that her application would be given consideration. Inasmuch as the online postings for the position were still up and she had been told that the position was open by "several people" connected with the company who had encouraged her to apply,12 Petitioner had no reason to believe otherwise. Moreover, the automatic e-mail reply that she received at 2:32 p.m. on June 11, 2009, confirming ADT's receipt of her application, which read as follows, stated that her application was being "review[ed]": Thank you for your interest in working at ADT Security Services, Inc. We have received your application for the position [of] Commercial Sales Manager and are currently reviewing your experience and qualifications. Please be advised that, due to the volume[] of applications received, we are only able to move forward with those candidates, whose skills and experience most closely reflect our requirements. We encourage you to access and update your online profile, on a regular basis, so that we may notify you when jobs matching your skills and interests become available. To apply to new opportunities, visit us at www.careersatadt.com. We thank you for your interest in ADT Security Services, Inc. and wish you the best of luck in your future endeavors. Best regards, ADT Security Services Recruitment. In actuality, neither her application, nor any other application for the MCCSM Position, was then being "review[ed]," but Petitioner did not know this. In mid-to-late July of 2009, Mr. Vidales received a written "offer letter," with a specific "start date," concerning the MCCSM Position.13 After learning that Mr. Vidales had been "awarded" the position, Petitioner sent the following e-mail, dated July 24, 2009, to the local ADT Human Resources Manager, Ms. Maia: I hope all is well by you. It was confirmed that Andres Vidales is now the Miami Commercial Sales Manager. I was wondering why I did not receive an interview? I feel ADT did not handle the process correctly and I was overlooked. I have always been a top performer during all my years here at the company and last year I was at 109% and that was just for half of the year since I started in April (218% if I was there the whole year). Not to mention I have over 8 years with the company (6 in Commercial Sales always above 100%). I feel my qualifications fit the criteria for the Commercial Sales Manager position and I should have at least received an interview. I on the other hand was not notified about anything, not in person or by email etc. I remember you approaching me two times to ask if Kurt [Mr. Sonnenberg] had contacted me to schedule an interview and I said that he did not. Also, you mentioned to me that he had my resume[14] and you would also forward another copy because you would be speaking to him so he could set up an interview. After the first time you contacted me about 2-3 weeks went by and you had asked me again if Kurt contacted me and I said no and you had said that you did not know why he hadn't reached out to me yet and you would again speak to him. Quite, honestly, I feel like I was overlooked because I am a female. Have a great day and I look forward to hearing from you. Ms. Maia contacted Ms. Carosielli and told her about Petitioner's July 24, 2009, e-mail. The two of them then spoke with Petitioner on a conference call, during which Ms. Carosielli apologized to Petitioner for "overlooking" her resume and suggested that Petitioner apply for another ADT Core Commercial Sales Manager position that was then open in Kentucky.15 At the time she made this apology, Ms. Carosielli had "not researched when Petitioner [had] applied" for the MCCSM Position, and she was operating under the erroneous assumption that Petitioner's application had been submitted "prior to [Mr. Vidales'] being offered the position." Ms. Maia also contacted Mr. Sonnenberg after receiving Petitioner's e-mail. She made Mr. Sonnenberg aware that Petitioner "was upset that her application had not been considered" for the MCCSM Position. When told this, Mr. Sonnenberg advised Ms. Maia that he had been "unaware that [Petitioner] had an interest in the position" inasmuch as her resume had never been forwarded to him.16 Ms. Maia then asked Mr. Sonnenberg to meet with Petitioner "to review her qualifications," which Mr. Sonnenberg agreed to do. The meeting between Mr. Sonnenberg and Petitioner took place a day or two later. At the meeting, Petitioner showed Mr. Sonnenberg her resume. This was first time that he had seen it. Mr. Sonnenberg went through Petitioner's resume with her and made suggestions as to what Petitioner could do to "position herself for the future to be able to obtain a position [in] management at ADT." He mentioned, in his discussion with Petitioner, that he did not "typically like to hire someone [for a managerial position where that person was] going to [be] manag[ing] [his or her] former peers."17 At the time of the meeting, Mr. Sonnenberg "did not know the date that [Petitioner had] applied" for the MCCSM Position. By letter dated September 14, 2009, Petitioner, through her attorney, advised ADT that she "intended to file a claim for employment discrimination with the Equal Employment Opportunity Commission and the Florida Commission on Human Relation about compensation to her for [Respondent's] unlawful employment practices" in connection with her having been "passed over for the position of Core Commercial Sales Manager." The concluding paragraph of letter read as follows: Ms. Sole has been a dedicated ADT employee for many years, and continues to be one of ADT's top performers. She is qualified for the position she sought, and is significantly more qualified than the male employee who was given the job. For Ms. Sole to be passed over for an employment position simply because she is a woman is both unlawful and unconscionable, and these events have been deeply upsetting to her. Ms. Sole's multiple written claims to ADT Human Resources of employment discrimination have shockingly gone uninvestigated and unanswered. At this juncture, Ms. Sole has authorized this firm to negotiate a pre-suit resolution of her claims so that restitution may be made to her. I invite you or ADT's legal representative to contact me within ten (10) days of your receipt of this letter, absent which Ms. Sole will conclude that you have no interest in attempting any amicable resolution and will proceed with filing a charge of gender discrimination. Petitioner's attorney and Respondent's attorney subsequently exchanged correspondence, but there was no "amicable resolution." The instant litigation ensued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding ADT not guilty of the unlawful employment practice alleged by Petitioner and dismissing Petitioner's employment discrimination complaint. DONE AND ENTERED this 27th day of October, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2010.
The Issue Whether Respondent committed an unlawful employment practice.
Findings Of Fact Petitioner is a woman who suffered an aneurysm in 1987 which resulted in paralysis. Subsequently, she regained full use of her body except for her left hand. She possesses gross motor skills in her left hand but lacks fine motor skills. Respondent is a retail furniture store, which at times pertinent did about three million dollars in business annually. Respondent at times pertinent employed 23 to 26 full-time employees. Respondent went out of business on September 24, 2001. Petitioner interviewed with Doris Hudson and Cindy Gentry about three weeks prior to June 8, 2000. Petitioner was informed that she was hired and could begin work on June 8, 2000. The position she was hired for was accounts payable clerk. During the interview, the matter of the facility of Petitioner's left hand was not noted or discussed. Petitioner believed that the job consisted of mostly working on a keypad with numbers, in the accounts payable section of the bookkeeping office. Petitioner reported for work on June 8, 2000. Doris Hudson, Respondent's Comptroller, an employee of Respondent for over 41 years, provided her with a tour of the premises. Petitioner's first assignment was to type checks. She did this slowly because she could type only with her right hand. Typing checks is an important function of the accounts payable clerk. Most vendors were paid by checks which were prepared by data processing equipment but it was necessary to prepare many checks for local vendors on a typewriter. During the hour and a-half Petitioner worked at the typewriter, she correctly prepared three checks. Ms. Hudson expected an accounts payable clerk to prepare 25 to 35 checks in an hour and a-half. An accounts payable clerk, according to Ms. Hudson, should be able to type 55 words per minute; Petitioner could type only 30 words per minute on a good day. An accounts payable clerk's daily activities included kneeling on the floor and opening a large safe; swinging open a heavy door which has to be unlocked with two keys simultaneously; counting 30 to 50 checks per day and counting currency and coins; and printing out reports which were inserted in a large binder. A substantial part of the duties of the accounts payable clerk required excellent typing and data input skills. The accounts payable clerk was required to reload the printers and this required the coordination of two hands. The accounts payable clerk was required to prepare deposits which required that the employee flip each individual check with one hand and operate a calculator with the other. Ms. Hudson did not discover the deficiencies with regard to Petitioner's left hand until she made inquiry after noting the small number of checks which Petitioner prepared. Ms. Hudson could not use an employee who could not do the activities described in paragraph eight and nine, above. Ms. Hudson could not call others in the office away from their jobs to help a person who had limited use of one hand. She did not have enough employees. When Ms. Hudson's office was fully staffed there were many times when it was difficult to accomplish all necessary duties in an eight-hour day. It was Ms. Hudson's opinion that Petitioner could not perform the duties of accounts payable clerk and that it was impossible to accommodate her deficiencies without disrupting the orderly functioning of her office. After considering Petitioner's capabilities and the requirements of the accounts payable clerk, Ms. Hudson decided that Petitioner was not suitable for employment as an accounts payable clerk and as a result, discharged her. Petitioner was paid $22.61 for 2.66 hours of work. This reflected an hourly wage of $8.50. Petitioner worked as an administrative assistant at Century Boats in Panama City prior to obtaining the job with Respondent. She lost that job in February of 2000, due to a reduction in workforce. After Petitioner left Respondent's place of business she went to work at a clinic run by Bay Medical. She began working there on August 28, 2000, as an insurance coder and biller and was paid $8.00 per hour. She lost that job on February 28, 2001, when the facility closed. She was offered a job in the radiology section but it paid less so she elected to remain essentially unemployed for a year. She did work a one- week job with Cardiology Associates and worked for C-1 Medical Clinic for a month and a-half during that period. Petitioner, at the time of the hearing, was employed by Nextel Communications as a customer care representative and was paid $9.50 per hour. She started February 18, 2002. Petitioner has a hard time buttoning clothes but she can drive an automobile. She testified she could do, ". . . everything pretty much what everybody does." She can't throw a ball up with her left hand or play tennis anymore. She can lift heavy objects up to at least 75 pounds. She has no medical restrictions placed on the use of her left hand.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is recommended that the Florida Human Relations Commission enter a final order dismissing Petitioner's Amended Charge of Discrimination. DONE AND ENTERED this 11th day of July, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2002. COPIES FURNISHED: Linda Chesser 6802 Penny Road Panama City, Florida 32404 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street, Suite 100 Tallahassee, Florida 32303-4019 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact After the motion for continuance was again denied, petitioners declined to offer any evidence and petitioners announced that they would be pursuing certain supposed federal remedies.
Findings Of Fact Respondent, David Spalty, holds a teaching certificate issued by the State of Florida, and at all times relevant hereto was employed by Petitioner, the School Board of Pinellas County as a teacher by means of a professional service contract. Respondent earned a Bachelor of Science degree in Business Education and has a background in accounting. Respondent was assigned to Boca Ciega High School in the Pinellas County School System for approximately three (3) years and during the 1990-91 school year, was also the head baseball coach. At the outset of his employment, Respondent was provided a copy of the Code of Student Conduct which is utilized by Petitioner as a guide for directing its instructional employees to ensure that students practice proper conduct. The code prohibits students from using tobacco products and from using vulgar and/or profane language. Respondent allowed students on the baseball team to use smokeless tobacco despite the fact that he was aware that such was prohibited conduct and was in contravention of the Code of Student Conduct. Although Respondent initially told students to stop using tobacco, he made it clear to such students that he would not strictly enforce the policy. In fact, on more than one occasion, Respondent openly used tobacco in the student's presence and on one occasion borrowed tobacco from a student. The Florida High School Athletic Association (FHSAA) published a set of rules for baseball during the 1990-91 school year which prohibited coaches, such as Respondent, from using tobacco products during a game or in the vicinity of the playing field. Petitioner has adopted an athletic policy which, inter alia, requires head coaches, such as Respondent, to be responsible for carrying out athletic policies of the department, county and state. Respondent was advised of these rules by Petitioner's employees. During the 1990-91 school year, Respondent was observed by Stanley LaBoss, an assistant principal at Boca Ciega High School, openly allowing a student to use smokeless tobacco in his presence. Respondent failed to take any steps to prevent the student from engaging in such conduct. Respondent, during the 1990-91 school year, both in the classroom and in his capacity as baseball coach, frequently used vulgar and/or four-letter profane language in the presence of students. Respondent was observed, by several students in one of his classes, using smokeless tobacco. The students questioned Respondent about his conduct whereupon he put his finger to his lips indicating that they should keep quiet about it. On April 22, 1991, Respondent while enroute from a baseball game with his students who were being transported by bus, pulled downs his pants in the presence of his students and/or team members, and exposed his bare buttocks ("mooning"). On several occasions, Respondent told students at Boca Ciega High School that he had an intimate sexual relationship with a female instructional employee at Boca Ciega High School, which statement was false. Rumors about Respondent and the female instructional employee was a continuous source of gossip among students on the baseball team and other students who took a class from Respondent. Although Respondent was aware of the rumors, he did nothing to curtail them. The rumors became so prevalent that the situation forced the affected female employee to approach Respondent as it was affecting her ability to control her students who were gossiping and making cynical remarks about the rumors. Respondent, as baseball coach, was in charge of concessions (at baseball games) and for other fund raising activities which were utilized by Petitioner to defray some of the expenses of the baseball team. Petitioner has adopted rules for managing internal fiscal accounts which require, among other things, that adequate auditable financial records be maintained. Respondent failed to maintain and produce to Petitioner the financial records of the baseball team and its support organizations when requested to do so by the principal at Boca Ciega High School. Although Respondent produced a checkbook and subsequently an inventory of the property, he failed to produce receipts for transactions which were journaled in the financial records. Respondent admitted that he collected money for ads in the school's baseball program brochure which were not included in the program and that monies were taken from the concession stand without a proper accounting. Adverse publicity concerning Respondent's behavior, including the exposing of his buttocks, appeared in at least two local newspapers in Pinellas County which has a daily circulation in excess of 290,000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order dismissing Respondent from his employment relationship as a teacher with the Pinellas County School Board. DONE and ENTERED this 26th day of November, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1991. COPIES FURNISHED: Bruce P. Taylor, Esquire Pinellas County School Board Post Office Box 2942 Largo, Florida 34649-2642 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640-3625 J. Howard Hinesley, Ed.D. Superintendent of Schools Pinellas County School Board Post Office Box 2942 Largo, Florida 34649-2942 Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
